UNIVERSITY   OF    NEBRASKA 

DEPARTMENTS  OF  HISTORY 
AND    ECONOMICS 

SEMINARY   PAPERS 


EVOLUTION 


OF   THE 


ORDINANCE  OF   1787 

WITH    AN     ACCOUNT     OF    THE    EARLIER    PLANS    FOR    THE 
GOVERNMENT   OF  THE  NORTHWEST   TERRITORY 


BY 


JAY   A.  i  BARRETT,  M.A. 

,. 


&*tr     < 

APRIL,    l8gl 


;VB 


G.  P.  PUTNAM'S  SONS 

NEW   YORK  LONDON 

27  WEST  TWENTY-THIRD   ST.  27     KING   WILLIAM    ST.,   STRAND 


1891 


PRICE   ONE   DOLLAR 


UNIVERSITY   OF   NEBRASKA. 

Departments  of  History  and 
Economics. 

George  E.  Howard,  M.A.,  Professor  of  History. 

Howard  W.  Caldwell,  Ph.B.,  Associate  Professor  of  History. 

Amos  G.  Warner,  Ph.D.,  Associate  Professor  of  Economics  and  Political  Science. 

COURSES   OF  STUDY. 

I.  HISTORY. 

(1)  Ancient  History  :  Epochs  of  Grecian  and  Roman  History  ;  Lectures  on  Athenian  and  Roman 

Institutions.     Whole  year,  four  hours. 

(2)  The  Early  Empire  :  General  History  of  Civilization,  with  a  special  study  of  Roman  Provincial 

Administration.     First  term,  four  hours. 

(3)  The  Middle  Ages  :  Selected  Topics.     Second  and  third  terms,  four  hours. 

(4)  The  Renaissance :  Revival  of  Literature,  Learning,  Art,  Politics,  and  Religion.     First  term, 

four  hours. 

(5)  European  History,  1500-1800 :  Protestant  Revolution,  Thirty  Years'  War,  Puritan  Revolution, 

Age  of  Anne.     Whole  year,  three  hours. 

(6)  The  French  Revolution.     Second  and  third  terms,  three  hours. 

(7)  Ancient  Law  :  A  Study  of  the  Genesis  of  Aryan  Institutions  and  of  the  History  of  Roman  Law. 

First  term,  three  hours. 

(8)  Growth  of  the  English  Constitution.     Whole  year,  five  hours. 

(9)  Political  History  of  the  Nineteenth  Century.     First  term,  three  hours. 
(10)  American  History  to  1787.     Whole  year,  five  hours. 

(n)  American  History  :  Formation  of  the  Constitution  ;  Ratification;  Political  and  Constitutional 
Development  to  the  Civil  War  ;  Reconstruction.  Whole  year,  five  hours. 

II.  ECONOMICS  AND  POLITICAL  SCIENCE. 

(1)  Political  Economy  :  General  study  of  the  subject  with  the  use  of  some  text.     Lectures  on  the 

Character  and  History  of  the  Science.     Topical  reports  from  students  required,  and  exer 
cises  assigned  in  the  use  of  statistics.     First  and  second  terms,  three  hours. 

(2)  Taxation  :  Text  and  lectures.     Third  term,  three  hours. 

(3)  International  Law  :  Outline  study  of  the  subject,  with  text.     Third  term,  three  hours. 

{4)  Municipal  Administration  :  Comparative  study  of  the  City  Governments  of  the  present  time, 
with  especial  reference  to  American  practice  in  the  administrative  branches.  First  and 
second  terms,  two  hours. 

(5)  Constitutional  Law.     Third  term,  three  hours. 

(6)  Private  Corporations  :  First  term,  a  comparative  and  historical  view  of  corporation  law  in  its 

economic  aspects  ;  second  term,  Railroad  Problems  ;  third  term,  special  reports  on  assigned 
topics  involving  original  research.     Whole  year,  two  hours. 

(7)  Charities  and  Corrections.     Third  term,  three  hours. 

(8)  Methods  of  Legislating :  A  comparative  view  of  the  rules  and  practice  of  modern  legislative 

assemblies.     First  term,  one  hour. 

III.  SEMINARY  OF  HISTORY  AND  ECONOMICS. 

Graduates,  advanced  undergraduates,  and  instructors  in  the  two  departments  form  an  association 
for  seminary  work.  Stated  meetings  are  held  for  the  presentation  and  discussion  of  papers  and  reports- 
Studies  are  made  of  economic  and  similar  questions,  based  largely  on  corporation  records,  State 
archives,  personal  interviews,  and  correspondence.  Other  material  for  independent  research  is  afforded 
•by  the  libraries  of  the  University,  State,  City,  and  Historical  Society. 


UNIVERSITY   OF    NEBRASKA 

DEPARTMENTS  OF  HISTORY 
AND    ECONOMICS 

SEMINARY   PAPERS 


EVOLUTION 


OF   THE 


ORDINANCE  OF   1787 

WITH    AN     ACCOUNT     OF    THE    EARLIER    PLANS    FOR    THE 
GOVERNMENT   OF  THE  NORTHWEST   TERRITORY 


JAY    A.    BARRETT,  M.A. 


APRIL,    l8gl 


G.  P.  PUTNAM'S  SONS 

NEW  YORK  LONDON 

27   WEST  TWENTY-THIRD   ST.  27    KING   WILLIAM    ST.,   STRAND 


1891 


PRICE   ONE  DOLLAR 


COPYRIGHT,  1891 

BY 
JAY  A.  BARRETT 


ttbe  Unfcfeerbocfeer  press,  flew  IPorfc 

Electrotyped,  Printed,  and  Bound  by 
G.  P.  Putnam's  Sons 


EDITORIAL    NOTE. 


The  starting  of  a  new  academic  series  ought  to  require  no 
apology.  On  the  contrary,  it  is  a  sign  of  progress  that 
American  universities  are  at  last  becoming  centres  of  organ 
ized  literary  work.  It  can  scarcely  be  doubted  that  the 
present  decade,  which  has  seen  so  much  activity  in  this 
direction,  will  mark  an  important  epoch  in  the  history 
of  American  thought.  Clearly,  we  have  just  reached  a  stage 
in  higher  educational  development  which  has  long  since 
been  entered  upon  by  the  schools  of  Germany.  The  as 
cendency  of  that  nation  in  nearly  every  branch  of  science  is 
mainly  due  to  the  fact  that  her  scientific  literature  has  its 
roots  in  the  Seminar,  which  is  at  once  the  nursery  and  the 
workshop  of  the  professorial  body.  Indeed  German  author 
ship  as  a  whole  is  in  no  small  measure  the  product  of 
university  specialization. 

But  it  is  not  merely  as  an  incentive  or  as  a  medium  for 
the  highest  scholastic  effort  that  such  publication  should  be 
encouraged.  There  is  much  useful  work  which  can  be  we.ll 
done  even  by  the  young  scholar  of  the  graduate  school. 
This  is  especially  true  in  the  various  departments  of  eco 
nomic  and  historical  science.  The  statesmanship  of  the 
immediate  future  must  concern  itself  largely  with  adminis 
trative  problems  ;  and  much  of  the  material  upon  which 
wise  action  must  rest  has  yet  to  be  gathered.  By  aiding  in 
the  collection  and  publication  of  this  material  an  important 
service  to  the  State  may  be  rendered  by  the  school  of 
political  science. 

Already  much  good  work  has  been  done.  Is  it  not  pos 
sible,  however,  that  the  efficiency  of  scientific  study  may  be 


15978! 


iv  Editorial  Note. 

increased  by  a  judicious  division  of  labor?  Some  degree  of 
differentiation  according  to  locality  or  special  opportunity 
would  seem  to  be  desirable.  It  will  therefore  be  the  aim  of 
the  Seminary  Papers,  while  not  excluding  other  topics,  to 
deal  mainly  with  questions  relating  to  Western  history  and 
economics.  Subsequent  numbers  will  be  issued  from  time 
to  time  as  it  may  be  found  expedient. 


CONTENT 


I. — INTRODUCTION   .                          .                 .                 .  3~5 

II, — THE  FIRST  PLANS     .                           «...  6-n 

(a) — The  Army  Plan 7-9 

(b) — The   Financiers'  Plan  .         .         .         .9-11 

III. — THE    PERIOD  FROM    JUNE,    1783,    TO    FEBRUARY 

1784:  THE  OFFICERS' PETITION     .        .        .  12-16 

iV.— THE  LAW  OF  1784 i7~27 

Bibliographical  Note  for  the  Subject    .  17 

(a) — Jefferson's  Draught 17-23 

(b)— The  Second  Report     .                  ...  23-27 

V. — THE  REVIVAL  OF  THE  SLAVERY  PROVISO        .  28-32 

Bibliographical  Note  for  the  Subject   ...  28 

VI. — PLANS  FOR  FEWER  STATES     ...                  .  33-41 

(a) — Monroe's  Influence      ...                  .  33-38 

(b) — Grayson's  Influence 38-41 

VII. — THE  NORTHERN  COMMITTEE         ....  42-45 

(a)— The  First  Report 42-43 

(b)— The  Second  Report 43~45 

VIII. — THE  OHIO  COMPANY 46-48 

IX. — THE  FINAL  COMMITTEE 49~73 

Bibliographical    Note    for    the   Subject   of    the 

Ordinance  of  1787           .....  49-50 

(a) — Membership          .                  .                            .  50-52 

(b) — Work  of  the  Committee       ....  52-53 

(c)— The  Report           .                  ....  53-68 

(d)— The  Influence  of  Manasseh  Cutler      .         .  68-73 

X. — THE  REPORT  BEFORE  CONGRESS      ....  74-80 

(a) — The  Minor  Amendments      .                  .         .  74~75 

(b) — The  Anti-Slavery  Amendment     .         .         .  75-80 

XI. — TEXT  OF  THE  ORDINANCE  OF  1787       .         .         .  81-89 

LIST  OF  AUTHORITIES 89-94 


EVOLUTION  OF  THE  ORDINANCE  OF  1787. 


EVOLUTION  OF  THE  ORDINANCE  OF  1787. 

i. 

INTRODUCTION. 

The  Confederacy  was  a  failure  as  a  system  of  government, 
and  its  defects  are  too  well  known  to  need  treatment  here, 
except  when  they  have  an  important  bearing  on  the  organi 
zation  of  unsettled  lands.  The  conditions,  however,  under 
which  the  first  plans  were  directly  or  indirectly  developed 
arose  mainly  from  the  peculiar  nature  of  that  league  be 
tween  the  States.  The  degree  to  which  the  Continental 
Congress  was  able  to  raise  funds  manifestly  affected  each 
branch  of  the  administration  and  all  kinds  of  laws.  The  in 
adequacy  of  the  powers  of  that  body  had  been  felt  from  the 
first ;  but  its  actual  helplessness  was  not  realized  until  the 
close  of  the  war,  when  the  accumulated  debt  found  less  and 
less  prospect  of  immediate  liquidation  and  the  army  clam 
ored  loudest.  When  the  true  situation  began  to  be  seen, 
still  greater  questions  presented  themselves  for  solution. 
Congress  must  find  some  remedy  for  the  financial  distress  of 
the  impoverished  country.  It  must  feel  its  way  blindly 
along  the  dim  path  of  implied  powers  or  trespass  on  the 
field  of  unconstitutionality,  in  order  to  care  for  a  great  West 
of  which  not  only  the  resources  and  possibilities,  but  even 
the  very  limits,  were  vague  in  the  minds  of  those  best  in 
formed.  Thus  in  the  darkest  hour  of  the  Confederacy  plans 
had  begun  to  mature  both  for  a  better  union  of  the  existing 
States  into  a  nation,  and  for  the  organization  of  the  unoccu 
pied  territory ;  and  before  the  national  Constitution  was 
ready,  the  Ordinance  of  1787  had  become  a  law.  The  latter 

3 


4  Evolution  of  the  Ordinance  of 

was  framed,  therefore,  during  the  so-called  critical  period  of 
American  history,  and  by  the  authority  of  the  old  Con 
federate  Congress. 

The  claims  of  various  States  to  vast  tracts  of  western  land 
under  charters  and  conquests,  and  the  cession  of  them  to  the 
central  authority,  are  subjects  not  requiring  present  con 
sideration.  But  it  is  in  point  here  to  mention  the  action 
connected  with  the  adjustment  of  these  supposed  rights  as 
contemporary  with  the  first  plans  for  western  government 
and  as  determining  in  no  small  degree  the  attitude  of  Con 
gress  toward  the  region  in  question.  No  system  of  organi 
zation  applying  to  this  newly  acquired  domain  could  be 
seriously  entertained  until  that  assembly  was  acknowledged 
to  have  the  right  to  legislate  regarding  it  ;  yet  such  plans 
began  to  develop  while  the  States  still  looked  fondly  upon 
vast  stretches  of  country  and  thought  to  realize  prosperity 
therefrom.  Attempts  of  States  to  retain  something  of  that 
which  they  were  asked  to  relinquish  and  limitation  of  the 
central  power  due  to  an  imperfect  title,  were  constant 
factors  in  shaping  legislation  touching  disputed  territory, 
as  were  also  the  condition  of  the  army  and  that  of  the 
Treasury. 

The  western  country  began  to  be  looked  upon  as  a  pos 
sible  source  of  revenue  very  early  in  the  war.1  Indeed,  as 

1  The  attention  of  Congress  was  called  to  this  idea  in  1776  by  Silas  Deane. 
Writing  from  Paris,  December  i,  1776,  in  a  report  to  the  Secret  Committee,  he 
spoke  of  the  fertile  tract  of  country  between  the  Ohio,  Mississippi,  and  Lakes  as 
amply  adequate  to  defray  the  whole  expenses  of  the  war,  if  properly  managed  : 
American  Archives,¥'\i\h  Series,  iii.,  1020-1  ;  Adams,  Maryland's  Influence 
upon  Land  Cessions,  22,  citing  Sparks,  Diplomatic  Correspondence,  i.,  79.  Mr. 
Deane  also  mentioned  the  idea  to  John  Jay  in  a  letter  dated  two  days  after  his 
communication  to  Congress,  in  these  words  :  "  The  western  lands  ought  to  be 
held  up  to  view  as  an  encouragement  for  our  soldiers,  especially  foreigners,  and 
are  a  good  fund  to  raise  money  on  "  :  American  Archives,  Fifth  Series,  iii., 
1051.  From  this  time  forward  frequent  mention  of  the  trans-Alleghany  coun 
try  as  a  prospective  resource  occurs  in  the  correspondence  of  the  time  and  in  the 
records  of  Congress.  "  The  other  [i.e. ,  the  cession  of  Virginia]  will  contribute 
to  our  funds,"  wrote  Washington  to  Duane,  February  19,  1781  :  Bancroft, 
Hist,  of  Formation  of  Const.,  i.,  284-5.  The  report  of  a  grand  committee  on 
the  subject,  September  5,  1782,  declares  the  opinion  "  that  the  western  lands, 
if  ceded  to  the  United  States,  might  contribute  toward  a  fund  for  paying  the 


Evolution  of  the  Ordinance  of  1787.  5 

early  as  1776  we  find  not  only  mention  of  this  "fund  to 
raise  money  on,"  but  that  Congress  promises  the  soldiers 
bounties  out  of  the  land,  and  there  are  bold  suggestions 
that  it  be  parcelled  out  into  independent  States.1  However, 
comparatively  little  attention  was  given  to  the  financial  pos 
sibilities  of  the  unexplored  wilderness  until  the  end  of  the 
war.  The  idea  more  and  more  obtained  that  the  public 
debt  might  be  paid  in  whole  or  in  part  out  of  receipts  from 
purchased  lands.  This  prospect  greatly  aided  those  con 
gressional  measures  which  had  for  their  object  accession  of 
title  to  the  new  region,  as  well  as  those  which  contemplated 
its  organization. 

debts  of  the  states"  :  Life  of  Cutler,  i.,  129.  Cf.  another  report,  April  5, 
1784 :  Ibid.  Congress  had  already  taken  advantage  of  the  western  lands 
before  Mr.  Deane  made  his  suggestion,  in  offering  bounties  to  soldiers.  Acts 
of  Congress  to  this  effect  bear  the  dates  August  27  and  September  16,  1776. 
Four  years  later  another  resolve  was  passed  referring  to  the  same  subject 
(August  12,  1780).  See  on  this,  American  Archives,  Fifth  Series,  iii.,  53,  120, 
209,  211,  508-9,  788,  827,  1020-1,  1051,  etc.  ;  Life  of  Cutler,  i.,  122. 

1  By  Maryland  in  convention,  November  9,  1776  :  American  Archives,  Fifth 
Series,  iii.,  178. 


II. 

THE    FIRST    PLANS. 

There  were  various  reasons  for  the  unusual  attention  paid 
to  the  western  country  in  the  spring  of  1783.  International 
arbitration  gave  excellent  prospect  for  peace :  in  the  pre 
ceding  November  provisional  articles  had  been  signed  at 
Paris,  a  cessation  of  hostilities  was  declared  in  January,  and 
there  was  every  reason  to  expect  a  speedy  close  of  the  war. 
Peace  meant  the  disbanding  of  the  army,  which  would 
necessitate  payment  to  the  soldiers  of  at  least  enough  money 
to  enable  them  to  reach  home.  Congress  was  thus  forced 
to  meet  new  demands  upon  the  Treasury,  and  the  eyes  of 
its  members  were  turned  to  the  new  lands,  as  a  possible 
substitute  for  the  long  unpaid  dues  of  the  army.  On  the 
other  hand,  the  soldiers  were  thoroughly  dissatisfied  with 
the  complete  failure  of  the  government  to  supply  their 
needs.  In  December,  1782,  a  number  of  officers. petitioned 
Congress  in  behalf  of  the  army.1  Its  inability  to  give  defi 
nite  answer  led  to  bitter  discontent,  and  finally  resulted  in 
the  "  Newburg  Addresses  "  of  March,  1783,"  and  the  Phila 
delphia  mutiny  of  the  following  June.3  There  were  thus 
two  motives  for  immediate  action  :  the  needs  of  the  army 
on  the  one  hand,  and  of  the  government  on  the  other.  The 
former  produced  the  first  results. 

1  The  petition  is  printed  in  Life  of  Cutler,  i.,  152-4,  taken  from  Journals  of 
Congress,  iv.,  206. 

2  Pickering,  Life  of  Pickering,  i.,  406  ff.  ;  Sparks,   Writings  of  Washington, 
viii.,  551-66. 

3  Pickering,  Life  of  Pickering,  i.,  474-5. 

6 


Evolution  of  the  Ordinance  of  1787.  7 

(a) — The  Army  Plan. 

A  scheme  supported  by  some  of  the  principal  officers ' 
originated  about  the  first  of  April,  1783,  and  contemplated 
rewarding  the  soldiers  with  land  in  place  of  money.  One  of 
the  principal  movers  was  Pickering,  in  whose  handwriting 
has  been  preserved  a  rough  draft 2  of  the  propositions  made. 
It  was  the  work  of  several,  among  whom  were  also  Hunt- 
ington  and  Putnam.  They  intended  to  submit  it  first  to  the 
army,  in  order  to  learn  the  wishes  of  the  soldiers,  and  to 
apply  to  Congress  for  the  grant  when  all  should  be  ready. 
How  far  it  progressed  or  what  became  of  it  does  not 
appear.  Great  interest  was  manifested,  especially  by  Put 
nam,  whose  zeal  in  the  cause  is  mentioned  by  Pickering  in 
a  letter  of  April  14,  1 783.*  But  the  policy  of  Congress  was 
to  obtain  the  territory  by  cession  before  venturing  to 
organize  it,  and  doubtless  it  was  seen  to  be  impracticable  to 
urge  the  matter  at  that  time.  v  The  plan  bore  the  title, 
"  Propositions  for  settling  a  new  State  by  suck  officers  of  the 
Federal  Army  as  shall  associate  for  that  purpose"  These 
propositions  were  as  follows:  (i)  Purchase  from  the  natives 
of  a  certain  tract  of  country,  the  limits  of  which  correspond 
to  the  present  boundaries  of  Ohio.  (2)  Fulfilment  of 
promises  made  to  officers  and  soldiers  by.  Congress  in 
resolutions  dating  September  16,  1776,  and  August  13,  and 
September  30,  1780.  (s)-(^)  Additional  quantities  of  land 
for  actual  settlement  by  associators  within  one  year  after 


1  Timothy  Pickering  to  Hodgdon,  April  7,  1783  :   "  But  a  new  plan  is  in  con 
templation — no  less  than  forming  a  new  State  westward  of  the  Ohio.    Some  of  the 
principal  officers  of  the  army  are  heartily  engaged  in  it.     About  a  week  since, 
the  matter  was  set  on  foot,  and  a  plan  is  digesting  for  the  purpose.     Enclosed  is 
a  rough  draft  of  some  propositions  respecting  it,  which  are  generally  approved 
of.     They  are  in  the  hands  of  General  Huntington  and  General  Putnam  for 
consideration,  amendment,  and  addition.     ...     As  soon  as  the  plan  is  well 
digested,  it  is  intended  to  lay  it  before  an  assembly  of  the  officers,  and  to  learn 
the  inclinations  of  the  soldiers.     If  it  takes,  an  application  will  then  be  made  to 
Congress  for  the  grant  and  all  things  depending  on  them  "  /  Pickering,  Life  of 
Pickering,  i.,  457. 

2  Printed  in  Pickering,  Life  of  Pickering,  i.,  546-9,  Appendix  iii. 
s  Pickering  to  Hodgdon,  April  14,  1783  :  Ibid.,  i.,  461. 


8  Evolution  of  the  Ordinance  of  1787. 

purchase.  (7)  The  formation  of  a  common  property  of  the 
State  from  the  surplus  land,  to  be  "  disposed  of  for  the 
common  good  ;  as  for  laying  out  roads,  building  bridges, 
erecting  public  buildings,  establishing  schools  and  acade 
mies,  defraying  the  expenses  of  government  and  other 
public  uses."  (8)  Clearing  of  a  certain  number  of  acres 
within  a  specified  time  and  erection  of  a  house.  (9)  Equip 
ment  of  associators  by  the  government  and  payment  by  the 
same  of  expenses  in  marching  to  place  of  settlement ; 
equipment  should  include  necessary  utensils  of  husbandry, 
live  stock,  and  subsistence  for  three  years.  But  cost  of  all 
equipment  should  be  charged  to  arrearages  due  associators. 
(10)  Equipment  should  also  comprise  arms  and  ammunition, 
(i  i)  Formation  of  a  constitution  for  the  new  State  by 
associators  before  commencing  settlement ;  "  the  total  ex 
clusion  of  slavery  from  the  State  to  form  an  essential  and 
irrevocable  part."  (12)  Enactment  of  laws  against  crime 
and  for  the  preservation  of  the  peace,  to  be  in  force  two 
years  unless  sooner  repealed  by  an  assembly  of  the  State. 
(13)  Immediate  admission  of  the  prospective  State  into  the 
Union.  (14)  Election  of  delegates  by  associators,  to  take 
their  places  as  soon  as  the  new  State  should  be  formed. 
(15)  Care  by  the  State  of  families  of  disabled  and  deceased 
associators. 

Such  was  one  of  the  very  first  '  efforts  to  erect  the  frame 
work  of  a  new  republic  out  of  the  territory  then  just  begin 
ning  to  be  occupied  by  settlers  from  all  the  Atlantic  States. 
The  idea  was  that  the  State  should  be  made  up  of  men  used 
to  military  life  ;  and  that,  while  justice  would  thus  be  done 
the  soldiers,  they  in  turn  would  serve  the  Union  by  protect 
ing  the  frontiers.  The  need  of  the  army,  however,  was  the 
occasion  of  this  scheme.  Its  object  was  to  obtain  from  the 
government  the  dues  of  the  army ;  and  these  seemed  to  be 

1  Thomas  Paine,  in  Public  Good,  1780,  also  suggested  a  plan.  This  pam 
phlet  announced  on  the  title-page  :  "an  investigation  of  the  claims  of  Virginia 
to  the  vacant  western  territory,  and  of  the  right  of  the  United  States  to  the 
same  ;  with  some  outlines  of  a  plan  for  laying  out  a  new  State,  .  .  ."  :  Adams, 
Maryland's  Influence,  IO,  citing  Works  of  Thomas  Paine,  i. ,  267.  Cf.  Win- 
sor,  Narr,  and  Crit.  Hist,  of  Amer.,  vii.,  527-8. 


Evolution  of  the  Ordinance  of  1 787.  9 

forthcoming  in  no  other  form.  Had  this  plan  been  carried 
out,  the  resulting  State  would  probably  have  proved  much 
more  of  a  success  from  the  stand-point  of  the  associators, 
than  from  that  of  Congress.  Its  main  constitutional 
features  would  have  been  drawn  by  men  quite  competent  to 
the  task.  With  the  provisions  for  public  improvements, 
and  with  the  untempered  anti-slavery  proposition,  the  new 
State  would  have  rid  itself  quickly  of  its  peculiar  relation  to 
Congress,  and  ere  long  would  have  rivalled  the  older  com 
monwealths  in  prosperity  and  thrift. 

(b) — The  Financiers    Plan. 

In  April,  1783,  Washington  wrote  a  long  letter  to  The- 
odoric  Bland  in  answer  to  some  inquiries,  stating  the  situa 
tion  of  the  army  at  some  length  and  requesting  him  to 
communicate  the  contents  to  Hamilton.1  A  few  days  later 
John  Armstrong  wrote  to  Washington,  requesting  him  to 
drop  a  hint  to  Congress  in  regard  to  the  subject  named  in  the 
letter,  viz.,  a  plan  for  settling  the  western  country.2  What 
ever  may  have  been  said  by  Washington  relative  to  the  sub 
ject,  at  any  rate  on  June  5,  Bland,  supported  by  Hamil 
ton,  moved  the  adoption  of  an  ordinance  which  was  referred 


1  April  4,  1783,  Bancroft  :  Hist,  of  Formation  of  Const.,  i.,  302-7. 

2  April  22,  1783  :  Ibid.,  308.     "  The  highest  matter  of  national  concern,  in 
my  opinion,  is  the  preservation  and  regular  settlement  of  the  western  country. 
That  country,  in  a  certain  ratio,  is  equally  the  property  of  every  state  in  the 
Union,  and,  if  properly  guarded  from  avaricious  claimants  and  vagrants,  may, 
at  a  very  moderate  price  in  the  process  of  time,  be  sold  out  to  a  large  amount 
indeed.     It  is  also,  under  proper  government,  a  solid  fund  for  the  security  or 
discharge  of  national  debt,  and  good  titles  there  must  induce  the  emigration  of 
men  of  character  and  wealth  from  foreign  parts.     A  proper  republican  plan  for 
this  great  purpose  is  not  very  easily  laid,  but  neither  the  plan  nor  the  execution 
of  it,  I  hope,  will  be  thought  impracticable.     If  that  country  is  settled  or  taken 
up  in  an  irregular  and  loose  manner,  these  states  will  sustain  an  unknown  loss, 
and  the  regular  establishment  of  government  will  be  greatly  impeded,  or,  per 
haps,  something  worse.      I  cannot  consider  that  country  in  the  same  light  we 
used  to  do  other  back  lands  clearly  belonging  to  individual  states  ;    it  is  the 
price  of  united  blood  and  treasure,  and  ought  neither  to  be  partially  engrossed, 
neglected,  nor  lavished  away.     Should  these  thoughts  happen  to  concur  with 
yours,  an  early  hint  to  Congress  may  call  this  matter  into  contemplation." 


IO  Evolution  of  the  Ordinance  of  1787. 

to  a  grand  committee.1  But  the  question  of  the  Virginia 
cession  was  unsettled,  and  until  this  was  determined,  it  was 
thought  best  not  to  take  action  upon  the  ordinance.  This 
document  is  in  Mr.  Eland's  handwriting2  ;  but  it  can  scarcely 
be  his  own  production  since  others  knew  of  it.  Possibly 
Hamilton  suggested  some  ideas.  The  circumstances  make 
it  probable  that  the  occasion  for  it  was  the  difficulty  of  the 
Treasury  in  meeting  the  payments  due  the  soldiers,  rather 
than  any  interest  in  their  welfare  or  in  the  western  country. 
The  plan  of  Pickering  had  been  made  from  the  stand-point 
of  the  army  ;  this  one  looked  at  the  matter  from  the  posi 
tion  of  a  financier.'  When  the  soldiers  contemplated  a  set 
tlement,  they  themselves  intended  to  frame  its  constitution  ; 
they  proposed  to  be  paid  in  full  by  Congress,  not  in  paper 
money,  but  in  the  necessaries  of  life  ;  and  they  desired  that 
their  colony  should  rank  as  a  State  from  the  first.  The 
character  of  the  organization  would  affect  them  most  of 
all ;  and  therefore  there  should  be  just  laws,  no  slave  should 
be  seen,  and  the  State  should  be  the  guardian  of  widows 
and  orphans.  Such  ideas  are  not  found  in  the  ordinance 
offered  by  Mr.  Bland,  which  appears  in  the  character  of 
a  financial  measure  intended  to  relieve  the  Confederation 
from  the  pressure  of  debt.  The  motion  provided  first  for 
the  acceptance  of  the  Virginia  cession  of  1781,  without 
guaranteeing  to  that  State  the  territory  which  she  had 


1  The  time  when  Bland  made  the  motion  is  in  doubt,  since  the  endorsement 
on  the  original  draft  gives  July  5,  while  the  language  used  in  the  Journals, 
under  date  of  July  4,  seems  to  indicate  that  the  motion  of  Bland  which  con 
tained  the  ordinance,  was  the  same  as  the  one  on  which  a  committee  reported 
July  4.      Cf.   Bancroft,   Hist,    of  Formation  of  Const.,  i.,   312,  and  Merriam, 
Hist,  of  Ordinance,  7.     Merriam  gives  an  extract  from  the  Journals,  July  4, 
citing  Journals  of  Congress,  iv.,   226-7.     Also  Bancroft  :  Hist,  of  Formation 
of  Const.,  i.,  107,  and  Hist,  of  U.  S.  (Fin.  Rev.),  vi.,  81  ;  Winsor  :  Narr.  and 
Crit.   Hist,   of  Amer.,   vii.,    528  ;   Ohio  Arch,   and  Hist.    Quar.,  ii.,  79.     Mr. 
Hinsdale  is  evidently  in  error  when  he  states  that  this  committee  reported  June 
9  :    Old  Northwest, J&fr.     Under  this  date  Madison  has  :   "  Not  states  enough 
assembled  to  form  a  Congress"  ;  Elliot's  Debates,  v.,  91.     Under  date  of  July 
5  Madison  merely  refers  to  the  Journals. 

2  For  the  whole,  see  Bancroft,  Hist,  of  Formation  of  Const.,  i.,  312-4.      Cf. 
Merriam,  Hist,  of  Ordinance,  6-7. 


Evolution  of  the  Ordinance  of  1/87-  n 

reserved  south  of  the  Ohio  River  ;  and  stated  further,  that 
in  case  Virginia  agreed  to  these  terms  the  ordinance  should 
take  effect  on  acceptance  by  the  army. 

The  following  are  the  main  provisions  :  (i)  Lands  should 
be  substituted  in  place  of  all  commutation  for  half  pay 
and  arrearages  due  the  army — thirty  acres  for  every  dollar 
due.  This  did  not  include  the  promised  bounty  lands. 
Furthermore,  the  land  was  to  be  free  from  taxation  seven 
years.  (2)  There  should  be  set  apart  for  this  purpose  a 
tract  of  vacant  territory  lying  within  the  bounds  described 
in  the  preliminary  treaty  between  the  United  States  and 
Great  Britain.  (3)  The  territory  so  set  apart  should  be 
laid  off  in  districts  not  more  than  two  degrees  in  latitude 
and  three  in  longitude ;  and  each  district  should  be 
divided  into  townships,  the  surveying  to  be  done  at  the 
expense  of  the  general  government.  (4)  Any  district  should 
become  a  State  and  be  admitted  into  the  Union  on  an 
equality  with  the  original  States  as  soon  as  it  contained 
twenty  thousand  male  inhabitants.  (5)  Ten  thousand  out 
of  every  hundred  thousand  acres  should  be  reserved  as  a 
domain  for  the  use  of  the  United  States  ;  "  the  rents,  shares, 
profits,  and  produce  of  which  lands,  when  any  such  shall 
arise,  to  be  appropriated  to  the  payment  of  the  civil  list  of 
the  United  States,  the  erecting  frontier  forts,  the  founding  of 
seminaries  of  learning,  and  the  surplus  after  such  purposes 
(if  any)  to  be  appropriated  to  the  building  and  equipping  a 
navy,  and  to  no  other  use  or  purpose  whatever." 

^The  scheme  failed  of  success,  because  it  was  not  yet 
clearly  within  the  province  of  the  general  government  to 
deal  with  the  unoccupied  territory.  In  their  cause  and  pur 
pose  the  two  plans,  it  has  been  said,  are  very  different. 
No  less  so  are  they  in  the  boundaries  proposed.  Obviously 
a  scheme  involving  land  for  the  whole  army  must  be  more 
comprehensive  than  one  where  only  "  associators "  were 
affected. 


III. 

THE   PERIOD   FROM  JUNE,   1783,  TO   FEBRUARY,  1/84:    ' 
THE   OFFICERS'    PETITION. 

Not  at  all  satisfied  with  this  state  of  affairs  and  determined 
to  make  further  efforts  to  move  Congress  regarding  the 
western  lands,  many  officers  of  the  Continental  line  peti 
tioned  for  a  new  government  in  the  unsettled  country. 
The  prime  mover  among  the  285  signers  seems  to  have 
been  Rufus  Putnam,1  who  was  active  in  furthering  the 
former  plan  of  the  soldiers.  This  paper,  dated  June  16, 
recites  the  resolves  of  Congress  touching  land  grants,  and 
mentions  the  territory  corresponding  to  the  present  State 
of  Ohio,  as  being  "  a  tract  of  country  not  claimed  as  the 
property  of  or  in  the  jurisdiction  of  any  particular  state  in 
the  Union,"  *  and  proper  for  Congress  to  mark  out  into 
a  "  distinct  Government  (or  Colony  of  the  United  States)  in 
time  to  be  admitted  one  of  the  confederate  states  of  Amer 
ica."  They  asked  further  that  when  Congress  had  procured 
the  tract  from  the  natives,  the  lands  to  which  the  peti 
tioners  were  entitled  should  be  located  and  surveyed  and 
provision  made  for  all  other  officers  and  soldiers  wishing 

1  Letter  of  Rufus  Putnam  to  Washington,  New  Winsor,  June  16,  1783,  accom 
panying  the  petition  :  ' '  The  part  which  I  have  taken  in  promoting  the  petition 
is  well  known,  and  therefore  needs  no  apology,  when  I  inform  you  that  the  sign 
ers  expect  that  I  will  pursue  measures  to  have  it  laid  before  Congress  "  :  Life  of 
Cutler,  i.,  167.  The  petition  is  found  in  Life  of  Cutler,  i.,  159-167  ;  Ohio  Arch, 
and  Hist.  Quar.,  i.,  38-46,  with  summary  of  the  number  of  petitioners  from  each 
State  as  follows:  Massachusetts,  155  ;  New  Hampshire,  34  ;  Connecticut,  46; 
New  Jersey,  36  ;  Maryland,  13  ;  New  York,  i.  Cf.  also  Bancroft,  Hist,  of 
Formation  of  Const.,  i.,  314—5. 

•  Life  of  Cutler,  i.,  159. 

12 


Evolution  of  the  Ordinance  of  1/87.  13 

to  settle  with  them.  In  regard  to  the  ownership  of  the 
tract  the  petitioners  had  been  misinformed ;  and  Wash 
ington,  to  whom  the  petition  was  sent  in  order  that  it 
might  go  to  Congress  with  the  weight  of  his  approval,  took 
care  to  remark  in  his  accompanying  letter  that  he  did  not 
pretend  to  say  how  far  the  tract  of  country  mentioned 
in  the  petition  was  free  from  State  claims.1  With  the 
petition  was  a  long  letter  from  Putnam  to  Washington,9 
wherein  he  discussed  the  various  questions  connected  with 
the  project — such  as  the  policy  to  be  pursued  regarding  the 
natives  and  the  commercial  interests  of  the  West.  But  the 
most  interesting  part  is  that  in  which  he  writes  of  the  accom 
modation  that  the  land  will  afford  the  soldiers,3  and  of  the 
local  divisions  proposed  for  the  tract.4  He  shows  that  they 

1  Washington  to  Pres.  of  Congress,  June  17,  1783  :  Life  of  Cutler,  i.,  172-4  ; 
Bancroft,  Hist,  of  Formation  of  Const.,  i.,  315-17. 

*  Printed  in  Life  of  Cutler,  i.,  167-72. 

'•'  "The  whole  tract  is  supposed  to  contain  about  17,418,240  acres,  and  will 
admit  of  756  townships  of  six  miles  square,  allowing  to  each  township  3, 040  acres 
for  the  ministry,  schools,  waste  lands,  rivers,  ponds,  and  highways  ;  then  each 
township  will  contain  of  settlers'  lands  20,000  acres,  and  in  the  whole  15,120,000 
acres.  The  lands  to  which  the  army  is  entitled  by  the  resolves  of  Congress  re 
ferred  to  in  the  petition,  according  to  my  estimate,  will  amount  to  2,106,850 
acres,  which  is  about  the  eighth  part  of  the  whole  ;  for  the  survey  of  this  they 
expect  to  be  at  no  expense,  nor  do  they  expect  to  be  under  any  obligation  to  settle 
these  lands,  or  do  any  duty  to  secure  their  title  to  them  ;  but  in  order  to  induce 
the  army  to  become  settlers  in  the  new  government,  the  petitioners  hope  Con 
gress  will  make  a  further  grant  of  lands  on  condition  of  settlement  "  :  Life  of 
Cutler,  i.,  171. 

4  "  That  the  petitioners,  at  least  some  of  them,  are  much  opposed  to  the  mo 
nopoly  of  lands,  and  wish  to  guard  against  large  patents  being  granted  to  individ 
uals,  as  in  their  opinion  such  a  mode  is  very  injurious  to  a  country,  and  greatly 
retards  its  settlement,  and  whenever  such  patents  are  tenanted,  it  throws  too  much 
power  into  the  hands  of  a  few.  For  these  and  many  other  obvious  reasons  the 
petitioners  hope  that  no  grants  will  be  made  but  by  townships  of  six  miles  square, 
or  six  by  twelve,  or  six  by  eighteen  miles,  to  be  subdivided  by  the  proprietors 
into  six  miles  square,  that  being  the  standard  on  which  they  wish  all  calculations 
may  be  made,  and  that  officers  and  soldiers  as  well  as  those  who  petition  for 
charter  on  purchase,  may  form  their  associations  on  one  uniform  principle,  as  to 
number  of  persons  or  rights  to  be  contained  in  a  township,  with  the  excep 
tion  only  that,  when  the  grant  is  made  for  reward  of  services  already  done,  or  on 
condition  of  settlement,  if  the  officers  petition  with  the  soldiers  for  a  particular 
township,  the  soldiers  shall  have  one  right  only  to  a  captain's  three,  and  so  in 
proportion  with  commissioned  officers  of  every  grade  "  :  Ibid.,  171-2. 


14  Evolution  of  the  Ordinance  of  1 787. 

intended  to  have  townships  of  six  '  miles  square  ;  that  the 
question  of  setting  apart  lands  in  each  township  for  edu 
cation  and  the  ministry  was  already  well  settled  among 
them  ;  and  that  they  expected  the  government  to  do  the 
surveying  and  give  clear  titles  for  grants  already  made. 
The  plan  of  April  doubtless  proved  untimely.  The  army 
now  tried  petition  for  the  same  purpose  and  prompted  by 
the  same  motive.  Washington  sent  the  two  papers  to  Con 
gress  and  endorsed  the  idea  as  "  the  most  rational  and  prac 
ticable  scheme  which  can  be  adopted  by  a  great  proportion 
of  the  officers  and  soldiers  of  our  army."  :  Thus  were  these 
propositions  brought  to  the  notice  of  the  Federal  Assembly, 
some  of  them  new,  some  already  much  discussed.  The  time 
of  application  could  hardly  have  been  more  unfavorable. 
The  representatives  gathered  at  Philadelphia  were  having  an 
experience  not  at  all  conducive  to  calm  deliberations.  On 
June  21,  the  well-known  mutiny  of  the  Pennsylvania 
soldiers  took  place,  in  which  they  besieged  Congress  in 
its  own  hall.3  On  June  26 4  that  body  removed  to  Prince 
ton,  and  the  petitioners  obtained  no  immediate  results.  It 
is  not  difficult  to  see,  however,  that  this  paper,  with  the  let 
ters  of  Washington  and  Putnam,  had  not  a  little  to  do  with 


1  Townships  of  this  size  were  suggested  in  Congress  at  least  as  early  as  May  I, 
1782,  and  November  3,  1781  :  Life  of  Cutler,  i.,  337  ;  Merriam,  Hist,  of  Ordi 
nance,  5.  In  an  appendix  to  Smith's  account  of  Bouquet's  Expedition,  the  author 
ship  of  which  is  thought  to  belong  to  Thomas  Hutchins,  are  expressed  many  of 
the  ideas  which  occur  in  the  petition  of  June  16,  1783,  and  the  letter  of  Putnam. 
This  appendix  was  published  in  1765,  and  in  it  was  the  first  announcement  of 
the  "  section  "  or  square  mile  :  Col.  Charles  Whittlesey,  Origin  of  the  American 
System  of  Land  Surveys,  in  Miscellaneous  Papers,  No.  15,  p.  3. 

9  Washington  to  President  of  Congress,  June  17,  1783  :  Life  of  Cutler,  i., 

174- 

3  Madison's  account  in  Elliot's  Debates,  v.,  92-4  ;  McMaster,  Hist,  of  People 
of  U.  S.,  i.,  183-4  ;  Pickering,  Life  of  Pickering,  i.,  474-5  ;  Marshall,  Life  of 

Washington,  iv.,  615  ;  Sparks,  Writings  of  Washington,  viii.,  454-8  ;  Cur 
tis,  Hist,  of  Const,  of  U.  S.,  i.,  219,  note,  and  220,  note  ;  Hamilton  to  Reed, 

Works  of  Hamilton,  i.,  374-5  ;  Staples,  R.  I.  in  Continental  Congress,  490; 
Hamilton,  Hist,  of  Republic  of  U.  S.,  ii.,  560-8. 

4  Theo.  Bland  to  Governor  Harrison,  July  5,  1783  :  Cal.  Va.  State  Papers,  iii. 
508.     But*/.  Madison  in  Elliot's  Debates,  v.,  94;  Hamilton,  Hist,  of  Republic 
of  U.  S.,  ii.,  564. 


Evolution  of  the  Ordinance  0/1787.  15 

the  discussions  upon  the  subject  of  western  lands  after  the 
removal.1 

On  the  whole,  the  West,  with  its  call  for  government  and 
the  conflict  of  claims  upon  it,  occupied  much  of  the  time  of 
the  central  authority.  But  action  organizing  or  disposing 
of  it  was  reserved  until  disputes  were  nearer  settlement. 
The  fruit  of  the  summer's  discussion  began  to  appear  when 
it  was  voted  September  13,  1/83,  to  accept  the  cession  of 
Virginia  without  guaranteeing  the  territory  not  ceded.2 
Virginia  modified  her  conditions,  and  October  20  empow 
ered  her  delegates  to  make  a  cession.3  The  influence  of 
the  petition  is  more  clearly  seen  in  the  proceedings  of 
Congress  on  October  14,  when  Elbridge  Gerry  moved  an 
amendment  to  the  report  of  a  committee  on  Indian  affairs 
and  western  lands,  embodying  in  his  propositions4  many 
of  the  ideas  already  advanced  in  Putnam's  letter  and  the 
soldiers'  request.  More  than  half  of  the  petitioners,  155 
out  of  285,  were  Massachusetts  men.  Gerry  was  one  of 
their  representatives  in  Congress,  and  naturally,  therefore, 
was  interested  in  promoting  their  cause.6  The  credit  of  the 
ideas  advanced  in  Congress  at  this  time  concerning  the 
West  has  been  ascribed  to  the  influence  of  Washington.6 
There  were,  indeed,  on  the  same  occasion  other  suggestions 
than  those  probably  due  to  the  petition  of  the  soldiers  and 
the  letter  of  Putnam.  One  of  these  was  that  there  be  a 
period  of  territorial  government  before  the  establishment  of 
a  permanent  constitution.  Nothing  in  Washington's  letter 
suggests  this,  and,  furthermore,  it  appears  to  have  been 
under  discussion  at  Princeton  during  the  summer.7 

1  This  fact  is  learned  from  the  correspondence  of  David  Howell,  of  the  follow 
ing  spring.  Howell  to  Jonathan  Arnold,  February  21,  1784:  "The  mode  of 
government  during  the  infancy  of  these  States  has  taken  up  much  time,  and  was 
largely  debated  at  Princeton  last  summer  "  :  ft.  /.  in  Continental  Congress,  479. 

a  Donaldson,  Public  Domain,  67  ;  Adams,  Maryland's  Influence,  38-9 ; 
Henning,  Statutes,  xi.,  567-70. 

3  Henning,  Statutes,  xi.,  326-8. 

4  Life  of  Cutler,  i.,  337-8  ;  Merriam,  Hist,  of  Ordinance,^,  giving  October 
15  instead  of  October  14,  and  citing  Journals  of  Congress,  iv.,  296. 

5  Cf.  Life  of  Cutler,  i.,  339. 

6  Adams,  Maryland's  Influence,  43. 

1  JR.  /.  in  Continental  Congress,  479.     In  this  connection  it  is  well  to  notice, 


1 6  Evolution  of  the  Ordinance  0/1787. 

The  way  to  satisfy  the  claims  of  the  soldiers  and  organ 
ize  the  West  was  evidently  becoming  clear.  The  deed  of 
cession  was  not  executed  until  March  i,  1784,'  and  by  that 
time  another  ordinance  had  been  prepared. 

also,  the  statement  that  "  the  first  definite  plan  for  the  formation  of  new  States  in 
the  West,  is  to  be  found  in  a  letter  written  the  seventh  of  September,  1783,  by 
General  Washington  to  James  Duane,  Member  of  Congress  from  New  York"  : 
Adams,  Maryland's  Influence,  41  ;  Sparks,  Writings  of  Washington,  viii.,  477- 
84.  But  as  it  has  already  appeared,  the  army  plan  of  the  spring  and  the  petition 
of  the  summer  had  previously  defined  the  boundaries  of  a  proposed  State.  The 
project  of  Mr.  Bland,  also,  although  not  stating  clearly  what  should  be  the  limits 
of  the  whole  territory  included,  was  really  more  comprehensive  than  the  other 
two,  since  it  would  have  organized  sufficient  territory  for  several  States.  Wash 
ington  did,  indeed,  observe  in  the  letter  to  Duane,  that  the  country  correspond 
ing  to  the  southern  peninsula  of  the  present  State  of  Michigan  would  make 
a  compact  State  ;  but  he  was  very  far  from  being  the  first  to  point  out  a  definite 
plan  for  dividing  the  West  into  States.  Shosuke  Sato  has  here  followed  Dr. 
Adams:  Land  Question  in  U.  S.,  80-8 1. 

1  Winsor,  ATarr.  and  Crit.  Hist,  ofAmer.,  vii.,  528,  citing  Journals  of  Con 
gress,  iv.,  267,  342.  Printed  in  Henning,  Statutes,  xi.,  571—5  ;  Donaldson, 
Public  Domain,  68-6q,  etc. 


^         A,XX 


PROI'OSF.I)    DIVISION    ()!•'    TIIK    WKST    IN    TIIK 
1'I.AN    Ol'1    MARCH     I,     1784. 


IV. 

THE    LAW    OF    1784. 

BIBLIOGRAPHICAL  NOTE. — Dunn,  Indiana,  180-8  ;  Peter  Force,  Hist,  of  Or 
dinance,  in  St.  Clair  Papers,  ii.,  603-6,  and  Life  of  Cutler,  ii.,  407-11  ;  Ran 
dall,  Life  of  Jefferson,  i.,  397-400;  Sato,  Land  Question  in  the  U.  S.,  80-6; 
Bancroft,  Hist,  of  U.  S.  (Fin.  Rev.),  vi.,  116-8,  and//^/.  of  Formation  of  Const., 
i-,  356-7,  367  !  Winsor,  Narr.  and  Crit.  Hist,  of  Amer.,  vii.,  528  ;  Donaldson, 
Public  Domain,  146-9  ;  Stone,  The  Ordinance  of  1787,  in  Penn.  Mag.  of  Hist.- 
and  Biog.,  xiii.,  313-4,  320,  327  ;  Curtis,  Hist,  of  the  Const.,  i.,  296-9  ;  ii.,  343, 
345-6  ;  Life  of  Cutler,  i.,  338,  362-3  ;  Walker,  Hist,  of  Athens  County,  0.,  40; 
McMaster,  Hist,  of  People  of  U.  S.,  i.,  165-7,  citing  New  York  Tribune,  Dec. 
30,  1856,  and  Tribune  Almanac,  1857  ;  Dillon,  Hist,  of  Indiana,  182  ;  Adams, 
Maryland's  Influence,  42,  44-5,  47,  and  Nation,  xxxiv.,  384  (May  4,  1882);-' 
King,  Ohio,  178-9  ;  Ohio  Arch,  and  Hist.  Quar.,  i.,  5,  7,  12,  22,  32  ;  ii.,  37, 
46,  79,  80  ;  Hinsdale,  Old  Northwest,  266,  269,  273-4,  and  Mag.  of  West.  Hist., 
vi.,  267  ;  Sparks,  Writings  of  Washington,  ix.,  47-8  ;  Poole,  No.  Am.  Rev.,- 
vol.  cxxii.,  No.  251,  pp.  237-9  (April,  l876)  J  Davidson  and  Stuve,  Hist,  of 
Illinois,  206-7  5  Report  of  Commissioner  of  Centennial  Celebration,  Marietta,  0.. 
1888,  147-8,  219  ;  Morse,  Thomas  Jefferson,  75-6  ;  Fiske,  Crit.  Period  of  Amer- 
Hist.,  196-9  ;  Staples,  1\.  I.  in  the  Cont.  Cong.,  478-81,  485,  494  ;  Cooley,  Mich 
igan,  125-6  ;  Hildreth,  Hist,  of  U.  S.,  iii.,  449-50  ;  Pickering,  Life  of  Picker 
ing,  i.,  508-10  ;  Perkins,  Annals  of  the  West,  292  ;  Williams,  Hist,  of  Negro 
Slavery  in  Amer.,  i.,  416  ;  Porter,  Outlines  of  Const,  of  U.  S.,  62  ;  Eliot,  Hist, 
of  U.  S.,  274-5  ;  Arnold,  Hist,  of  State  of  R.  I.,  ii.,  507  ;  I.  W.  Andrews,  in 
"Mag.  of  Amer.  Hist.,  xvi.,  136-7,  139  ;  Cox,  Three  Decades  of  Federal  Legisla 
tion,  42-3  ;  Merriam,  Hist,  of  Ordinance,  8-13  ;  Knight,  Hist,  of  Land  Grants 
for  Education  in  N.  W.  Terr.,  10,  15  ;  Edwards,  Hist,  of  Illinois,  7,  8  ;  John-^- 
ston,  Ordinance  of  1787,  in  Lalor's  Cyclopedia  of  Pol.  Sci.,  iii.,  30-1  ;  Taylor, 
Hist,  of  Ohio,  505-9;  Von  Hoist,  Const.  Hist,  of  U.  S.,  1750-1832,  286-7;- 
Mich.  Pioneer  and  Hist.  Coll.,  vii.,  18  ;  Moses,  Illinois,  Historical  and  Statisti 
cal,  i.,  184  ;  Linn,  Life  of  Jefferson,  142-3. 

(a) — Jefferson  s  Draft. 

On  the  day  of  the  cession  by  the  Virginia  delegates  a 
committee  reported  a  plan  for  the  temporary  government  of 
the  western  territory.  Mr.  Jefferson  was  chairman,  the 

J7 


1 8  Evolution  of  the  Ordinance  of  1787. 

other  members  being  Mr.  Chase  of  Maryland,  and  Mr. 
Howell  of  Rhode  Island.  They  had  already  agreed  to  their 
report  as  early  as  February  21,  as  appears  from  the  corre 
spondence  of  members  of  the  committee.1  The  letters  of 
Mr.  Howell  especially  throw  light  upon  the  intentions  of 
the  committee,  and  make  possible  a  more  nearly  correct 
construction  of  the  report. 

The  plan  *  is  very  different  in  many  respects  from  any 
thing  previously  suggested  for  the  West.  Except  the  intro 
ductory  clause  the  first  paragraph  of  the  report  is  devoted 
to  a  scheme  for  dividing  the  country  into  States.  That 
clause,  however,  is  very  significant.  The  territory  which  is 
to  be  divided,  is  that  "  ceded  or  to  be  ceded  "  by  the  indi 
vidual  States  ;  and  the  plan  does  not  stop  at  the  limits  of 
the  cession  which  the  Virginia  delegates  completed  on  the 
day  of  the  report.  From  parallel  31°,  the  northern  boun 
dary  of  the  Spanish  possessions,  to  the  northern  boundary 
of  the  United  States  as  defined  not  long  before  in  the  treaty 
of  peace,  the  odd  parallels  of  latitude  are  to  form  north  and 
south  boundaries  of  States ;  while  two  meridians,  passing 
through  the  "  lowest  point  of  the  rapids  of  the  Ohio,"  and 
the  "western  cape  of  the  mouth  of  the  Great  Kenawha," 
cut  these  tiers  of  States  into  three  parts.  The  Mississippi 
forms  the  western  boundary  ;  for  it  was  not  given  to  the 
Congress  of  the  Confederation  to  discover  undeveloped 
possibilities  beyond  that  river.  There  were  thus  from  north 
to  south  eight  tiers  of  States.  The  real  intention  of  the 
committee,  however,  did  not  appear  in  the  report.  It  was 
their  purpose  to  allow  the  middle  section  of  States,  which 
was  bounded  east  and  west  by  the  two  meridians,  to  reach 
no  farther  south  than  the  northern  boundary  of  South  Car- 

1  Howell  to  Jonathan  Arnold,  February  21,  1784  :    "  The  report  is  agreed  to 
by  the  committee,  but  has  not  yet  been  made  to  Congress  "  :  R.  I.  in  Continen 
tal  Congress,  479. 

2  It  is  in  the   handwriting   of  Jefferson,  in  the  State   Department,  and  is 
printed  in  Randall,  Life  of  Jefferson,  i.,  397-9  ;  Force,  Hist,  of  Ordinance,  in 
St.  Clair  Papers,  ii.,  App.  i.,  603-5,  and  Life  of  Cutler,  ii.,  407-10  ;  Merriam, 
Hist,    of  Ordinance,    8-10.     In    Donaldson,   Public  Domain,    147-8,    part   is 
omitted. 


Evolution  of  the  Ordinance  of  1787.  19 

olina,  in  order  that  this  State  and  Georgia  might  extend  to 
the  more  western  meridian.1  The  territory  between  the 
Kenawha  meridian,  the  Ohio  River,  Pennsylvania,  and  Lake 
Erie  was  to  be  one  State.  They  assumed  that  Virginia  and 
North  Carolina,  also,  would  be  bounded  on  the  west  by  this 
meridian,  either  by  cession  on  their  part  or  by  action  of 
Congress.  All  territory  north  of  latitude  47°  was  to  belong 
to  the  State  immediately  south,  and  that  comprehended 
within  Lake  Michigan,  Lake  Huron,  and  parallel  43°,  was 
intended  to  be  one  State.  Carrying  out  the  letter  of  the 
plan,  there  were  sixteen  States  outlined ;  but  leaving  out 
the  two  States  that  would  be  formed  by  extending  the  part 
between  the  meridians  southward  below  the  northern  boun 
dary  of  South  Carolina,  there  were  fourteen  2  States.  To 


1  A  letter  which  is  of  much  value  in  showing  the  first  idea  of  the  committee 
about  dividing  the  West,  appears  to  have  been  thus  far  overlooked  in  the  discus 
sion  of  this  question.  It  is  one  written  by  David  Howell  to  Jonathan  Arnold, 
February  21,  1784,  in  which  he  said  :  "  It  is  proposed  to  divide  the  country  into 
fourteen  new  states,  in  the  following  manner.  There  are  to  be  three  tiers  of 
states  : — one  on  the  Atlantic,  one  on  the  Mississippi,  and  a  middle  tier.  The 
middle  tier  is  to  be  the  smallest  and  to  form  a  balance  betwixt  the  two  more 
powerful  ones.  The  western  tier  of  states  is  to  be  bounded  eastwardly  by 
a  meridional  line  drawn  through  the  lowest  point  of  the  rapids  of  the  river  Ohio, 
and  the  eastern  tier  is  to  be  bounded  westwardly  by  a  meridional  line  drawn 

through  the  west  cape  of  the  mouth  of  the  great from  Lake  Erie  to  the 

north  boundary  of  South  Carolina,  where  the  middle  tier  of  states  ends,  and 
permits  South  Carolina  and  Georgia  to  run  west  to  the  first  mentioned  meridio 
nal  line,  as  their  Atlantic  coast  falls  off  west  "  :  R.  7.  in  Continental  Congress, 
479.  Unless  the  committee  intended  to  terminate  the  middle  section  of  States 
at  the  northern  boundary  of  South  Carolina,  very  little  territory  would  remain  to 
Georgia,  and  South  Carolina  would  be  smaller  than  now.  The  construction 
shown  by  the  letter  is,  therefore,  given  in  the  text.  Mention  is  often  made  of  a 
plan  for  seventeen  States,  but  it  seems  to  be  incorrect  by  any  construction.  Cf. 
McMaster,  Hist,  of  People  of  U.  S.,  i.,  165,  and  others.  See  Map  I. 

8  Mr.  Dunn  errs  somewhat  in  stating  that  "  the  original  plan  provided  for  the 
formation  of  ten  states,  all  in  the  territory  northwest  of  the  Ohio  "  :  Indiana, 
180.  It  will  be  seen,  if  traced  out  on  a  map,  that  only  eight  lie  north  of  paral 
lel  39°,  and  even  this  parallel  cuts  the  north  bend  of  the  Ohio.  In  the  original- 
draft  no  provision  is  made  for  the  Ohio  to«be  a  boundary,  except  the  one  pro 
viding  that  so  much  of  the  point  of  land  at  the  confluence  of  the  Ohio  and  Mis 
sissippi  as  might  lie  south  of  parallel  37°  should  be  included  in  the  State  lying 
immediately  north  of  it  ;  but  there  was  no  need  for  this  one,  since  that  parallel 
does  not  cut  the  territory  north  of  the  Ohio.  His  supposition  that  "  the  origi- 


2O  Evolution  of  tke  Ordinance  (7/1787. 

ten  of  these,  names1  were  given.  The  common  statement 
that  Jefferson  would  have  divided  the  West  into  ten  States 
may  be  attributed  to  the  fact  that  only  that  number  re 
ceived  names. 

The  districts  do  not  differ  much  in  size  from  those  pro 
posed  by  the  ordinance  of  Mr.  Bland,  which  were  two 
degrees  in  latitude  and  three  in  longitude.  A  resolution  of 
Congress  on  October  10,  1780,  respecting  cessions  of  the 
western  territory,  mentions  States  of  "  not  less  than  one 
hundred  nor  more  than  one  hundred  and  fifty  miles 
square."  *  This  had  been  repeated  by  Virginia  in  her  acts 

nal  report  provided  only  for  the  division  of  lands  northwest  of  the  Ohio  and  ap 
parently  was  not  intended  to  apply  south  of  that  stream,  while  the  second  report 
covered  all  the  territory  west  of  the  Alleghanies"  (Indiana,  181),  seems  also  to 
be  incorrect.  *SUie  original  report,  or  the  one  made  March  i,  1784,  states 
expressly  that  the  division  into  States  should  begin  "  from  the  completion  of 
thirty-one  degrees  north  of  the  equator"  :  Randall,  Life  of  Jefferson,  i.,  397—8  ; 
Force,  Hist,  of  Ordinance,  in  St.  Clair  Papers,  ii.,  603  ;  Donaldson,  Public 
Domain,  147.  The  second  report,  on  the  other  hand,  if  it  agreed  in  this  partic 
ular  with  the  ordinance  as  passed  April  23,  says  that  the  new  States  shall  com 
prehend  from  north  to  south,  beginning  to  count  from  parallel  45°.  The  first 
report  reads,  "from  south  to  north."  The  second  says  nothing  about  31°  or 
about  States  south  of  the  Ohio  River.  The  latter  was  rather  more  in  harmony 
with  the  Virginia  theory  than  the  former.  Indeed,  there  is  evidence  tending 
to  show  that  Jefferson  was  not  the  exponent  of  the  Virginia  theory,  in  regard 
to  the  western  country.  In  a  letter  to  Madison,  February  20,  1784,  he  writes  : 
V  "  We  hope  North  Carolina  will  cede  all  beyond  the  same  meridian  of  Kenawha, 
and  Virginia  also  "  :  Bancroft,  Hist,  of  Formation  of  Const.,  i.,  343.  Washing 
ton  in  a  letter  to  Jefferson  dated  March  29,  1784,  understands  Jefferson  to  think 
the  same  way,  as  he  writes  of  the  impolicy  of  Virginia's  trying  to  retain  more 
territory  than  she  can  govern,  and  adds:  "for  the  reasons  you  assign,  I  very 
much  approve  of  a  meridian  from  the  mouth  of  the  Great  Kenawha  as  a  con 
venient  and  very  proper  line  of  separation,  but  I  am  mistaken  if  our  chief  magis 
trate  will  coincide  with  us  in  this  opinion  "  :  Sparks,  Writings  of  Washington, 
ix->  33-  Mr.  King,  in  Ohio,  178,  shows  a  similar  misconception  with  regard  to 
the  situation  of  these  States. 

1  The  names  have  been  the  cause  of  much  amusement  on  the  part  of  writers. 
They   are  :    Sylvania,    Michigania,    Cheronesus,    Metropotamia,    Assenisipia, 
Illinoia,    Saratoga,    Washington,    Polypotamia,    and    Pelisipia.      Cf.    Adams, 
Maryland's  Influence,  42,  47  ;  Nation,  May  4,  1882  ;  Morse,  Jefferson,  75-6  ; 
Fiske,  Crit.  Period  of  Amer.  Hist.,  196-8. 

2  Donaldson,  Public  Domain,  64  ;  Winsor,  Narr.  and  Crit.  Hist,  of  Amer., 
vii.,  527,    citing   Journals  of   Congress,   iii.,    535  ;  Sato,    Land  Question,   82  ; 
Adams,  Maryland's  Influence,  35  ;  Merriam,  Hist,  of  Ordinance,  4.     Shosuke 


Evolution  of  the  Ordinance  of  1787.  21 

and  deed  of  cession.  A  proposition  offered  May  i,  1782, 
would  have  enlarged  the  divisions  to  one  hundred  and  thirty 
miles  square.1  But  the  resolution  of  1780  is  regarded  in 
a  report2  subsequent  to  the  plan  of  1784  as  having  deter 
mined  the  size  of  States  outlined  in  that  scheme.  No  one 
of  the  proposed  States  was  to  be  formed  until  the  territory 
should  be  ceded  to  the  United  States,  if  not  already  ceded, 
and  Congress  should  purchase  the  land  of  the  Indian  inhab 
itants  and  offer  it  for  sale.  The  part  of  the  report  specify 
ing  how  the  temporary  government  was  to  be  formed,  is 
as  follows :  "  The  settlers  within  the  territory  so  to  be 
purchased  and  offered  for  sale,  shall,  either  on  their  own  pe 
tition,  or  on  the  order  of  Congress,  receive  authority  from 
them,  with  appointments  of  time  and  place  for  their  free 
males,  of  full  age,  to  meet  together  for  the  purpose  of  es 
tablishing  a  temporary  government,  to  adopt  the  constitu 
tion  and  laws  of  any  one  of  these  states,  so  that  such  laws 
nevertheless  shall  be  subject  to  alteration  by  their  ordinary 
legislature ;  and  to  erect,  subject  to  a  like  alteration,  coun 
ties  or  townships  for  the  election  of  members  for  their  legis 
lature."  When  any  State  acquired  20,000  free  inhabitants,3 
it  was  to  give  proof  of  the  fact  to  Congress  and  receive  from 
that  body"  authority,  with  appointments  of  time  and  place, 
to  call  a  convention  of  representatives  to  establish  a  perma 
nent  constitution  and  government  for  themselves." 

The  report  contained,  however,  a  statement  of  the  fol 
lowing  principles,  along  the  line  of  which  these  new  govern 
ments  must  move  in  their  establishment  and  growth :  (i) 
They  shall  for  ever  remain  a  part  of  the  United  States  of 


Sato  thinks  that  "  Mr.  Jefferson  must  have  been  governed  by  the  resolution  of 
Congress,  October  10,  1780,"  because  the  area  of  the  northwestern  cessions  is 
estimated  at  265,877.91  square  miles,  and  the  area  of  ten  States,  each  being  150 
miles  square,  amounts  to  225,000  square  miles  :  Land  Question,  82-3. 

1  Life  of  Cutler,  i.,  337  ;  Merriam,  Hist,  of  Ordinance,  5,  giving  the  report 
of  the  previous  autumn,  November  3,  1781,  and  taking  it  from  Papers  of  Old 
Congress,  vol.  xxx. 

2  Bancroft,  Hist,  of  U.  S.  (Fin.    Rev.),  vi.,  278  ;  Merriam,  Hist,  of  Ordi 
nance,  17. 

3  Cf.  "  20,000  male  inhabitants"  in  Eland's  ordinance  :  above,  Sec.  II.,  (b). 


22  Evolution  of  the  Ordinance  of  1787. 

America ;  (2)  they  shall  be  subject  to  the  government  of 
Congress  and  the  Articles  of  Confederation,  and  (3)  shall 
be  liable  for  their  share  of  the  Federal  debts ;  (4)  the 
government  shall  be  republican,  barring  from  citizenship 
any  one  holding  an  hereditary  title  ;  (5)  and  "  after  the  year 
1800  of  the  Christian  era  there  shall  be  neither  slavery  nor 
involuntary  servitude  in  any  of  the  said  states,  otherwise 
than  in  punishment  of  crimes,  whereof  the  party  shall  have 
been  duly  convicted  to  have  been  personally  guilty."  The 
last  provision  does  not  bear  comparison  with  the  proposal  in 
the  army  plan  about  a  year  before,  to  exclude  slavery  forth 
with  from  the  prospective  State.  Probably  Jefferson  knew 
only  too  well  the  reception  which  an  anti-slavery  proposi 
tion  would  receive  in  Congress,  and  perhaps  he  thought  that 
the  one  offered  by  the  committee  would  receive  more  favor 
than  an  immediate  prohibition.  There  is  no  reason  to  doubt 
the  genuineness  of  Jefferson's  anti-slavery  views.  He  may 
have  favored  the  extension  of  time  which  he  reported,  be 
cause  the  sentiment  in  Congress  would  not  support  stronger 
measures,  or  he  may  have  had  in  view  the  fact  that  there 
were  a  few  slaves  in  the  western  territory  already.  At  any 
rate,  this  was  the  committee's  decision  ;  and  no  doubt  it 
was  difficult  for  them  to  realize  the  full  meaning  of  the  con 
cession.  They  should  have  the  credit  of  desiring  to  remove 
slavery  from  the  whole  West,  but  they  were  not  alive  to  the 
possibilities  of  an  undeveloped  and,  for  the  most  part,  un 
settled  country,  ready  to  receive  the  effect  of  a  pro-slavery 
or  an  anti-slavery  constitution.  Professor  McMaster  points 
to  this  provision  of  March  i,  1784,  as  "the  first  attempt  at 
at  a  national  condemnation  of  slavery." ' 

After  gaining  a  population  of  twenty  thousand,  the  in 
habitants  of  a  State  might  indeed  form  a  permanent  govern 
ment  with  a  constitution  of  their  own  ;  but  this  did  not 
admit  to  the  Confederacy.  There  was  also  a  provision  that 
11  whensoever  any  of  the  states  shall  have,  of  free  inhabi 
tants,  as  many  as  shall  then  be  in  any  one  of  the  least 
numerous  of  the  thirteen  original  states,  such  state  shall  be 

1  Hist,  of  People  of  U.  S.,  i.,  167. 


Evolution  of  the  Ordinance  of  1787.  23 

admitted  by  its  delegates  into  the  Congress  of  the  United 
States,  on  an  equal  footing  with  the  said  original  states." 
After  the  accession  of  one  State,  there  was  to  be  substituted 
a  two-thirds  vote  of  Congress  in  cases  where  the  consent  of 
nine  States  was  before  required  ' ;  but  this  was  not  meant 
to  affect  the  vote  for  admission  of  States,  as  expressed  in 
Article  XI.  of  the  Articles  of  Confederation. 

Even  during  temporary  government  provision  was  made 
that  the  voice  of  the  people  might  be  heard  in  Congress. 
The  State,  while  in  this  stage,  might  keep  a  member  in 
Congress,  who  should  have  the  right  to  speak  but  not  to 
vote.  The  final  paragraph  deserves  to  be  quoted  in  full,  be 
cause  of  the  part  which  the  ideas  therein  expressed  played 
in  the  later  development  of  the  territorial  governments: 
"  The  preceding  articles  shall  be  formed  into  a  Charter  of 
Compact,  shall  be  duly  executed  by  the  President  of  the 
United  States  in  Congress  assembled,  under  his  hand  and 
the  seal  of  the  United  States,  shall  be  promulgated,  and 
shall  stand  as  fundamental  constitutions  between  the  thir 
teen  original  states  and  those  now  newly  described,  unal 
terable  but  by  the  joint  consent  of  the  United  States  in 
Congress  assembled,  and  of  the  particular  state  within  which 
such  alteration  is  to  be  made." 

(b) —  The  Second  Report. 

The  scheme  was  not  satisfactory,  and  on  March  17 2  it 
was  referred  to  the  same  committee  again  to  be  revised. 
In  a  new  report 8  nearly  a  week  later,  the  part  containing 

1  In  the  previous  summer  a  motion  had  been  made  in  Congress  by  William 
son,  seconded  by  Bland,  that  whenever  a  fourteenth  State  should  be  added,  a 
vote  of  ten  States  should  be  required  where  that  of  nine  was  sufficient  before  : 
Elliot,  Debates,  v.,  92. 

2  Donaldson,    Public   Domain,   148  ;    Peter    Force,    Hist,  of  Ordinance,   in 
St.  Clair  Papers,   ii.,  605,  and  Life  of  Cutler,   ii.,  410.      March  3  had  been 
assigned  for  its  consideration  :  Merriam,  Hist,  of  Ordinance,  8. 

3  Most  writers  give  the  22d  of  March  for  this  :  Donaldson,  Public  Domain, 
148  ;  Dunn,  Indiana,  182  ;  McMaster,  Hist,  of  the  People  of  the  U.  S.,  i.,  165 
(where  an  error  is  made  in  stating  that  the  second  report  contained  the  names 
of  the  States).  But  Mr.  Merriam  cites  the  endorsement  upon  the  second  report 
as:  "Report  on  Western  territory.  Delivered  March  23,  1784.  Read, 


24  Evolution  of  the  Ordinance  of  1 787. 

the  names  was  omitted,  and  the  boundaries  of  some  of  the 
States  to  be  laid  out  north  of  the  river  were  changed.1 
Here,  however,  the  division  of  the  territory  south  of  the 
Ohio  was  merely  implied.  It  made  six  entire  States  north 
of  the  Ohio,  besides  the  corner  next  to  Pennsylvania  and 
Lake  Erie,  one  third  the  size  of  the  State  now  occupying 
that  position.  The  extreme  northwest  was  left  unorgan 
ized,  because  the  measure  did  not  apply  above  parallel  45°, 
except  between  the  meridians.  It  covered  the  land  "  ceded 
or  to  be  ceded,"  and  there  was  prospect  for  half  a  dozen 
more  States  south  of  the  six  that  have  been  mentioned, 
provided  the  land  beyond  the  Alleghanies  should  be  yielded 
to  the  general  government. 

Wednesday  24th  assigned  for  consideration  "  :  Hist,  of  Ordinance,  10.  The 
error  of  Mr.  Dunn  has  been  noticed  already.  His  idea  appears  to  be  that  the 
first  report  looked  only  to  the  division  of  the  territory  northwest  of  the  Ohio 
River  ;  that  in  so  putting  it,  Jefferson  was  supporting  the  "Virginia  theory"  ; 
that  the  real  object  in  resubmitting  the  report  was  to  provide  for  the  land  south 
of  the  Ohio  also.  But  Jefferson's  personal  endeavor  from  the  start  was  to  have 
Virginia  cede  the  lands  from  the  Kenawha  meridian,  and  both  reports  covered 
the  territory  south  of  the  Ohio  as  well  as  that  north  of  it.  Moreover  the  influence 
of  the  rest  of  the  committee  should  not  be  overlooked. 

1  That  the  changes  in  boundaries  were  made  by  the  committee  before  their 
second  report  is  inferred  from  the  language  of  Mr.  Dunn  :  Indiana,  181  ;  but 
cf.  Randall,  Life  of  Jefferson,  i.,  400.  The  principal  alterations  were  :  that 
the  territory  "  which  may  lie  beyond  the  completion  of  the  45th  degree, 
between  the  said  meridians,  shall  make  part  of  the  State  adjoining  it  on  the 
south  ;  and  that  part  of  the  Ohio,  which  is  between  the  said  meridians,  coin 
ciding  nearly  with  the  parallel  of  39  degrees,  shall  be  substituted  so  far  in  lieu 
of  that  parallel  as  a  boundary  line."  But  if  only  that  part  of  the  territory 
north  of  parallel  45°,  which  lies  "between  the  said  meridians,"  was  to  be 
added  to  the  territory  south  of  it,  northern  Wisconsin  and  northwestern  Michi 
gan,  as  they  are  to-day,  were  not  included  in  the  territory  to  be  divided.  For 
the  divisions  were  to  begin  at  parallel  45°,  counting  "from  north  to  south." 
Writers  generally  give  the  ordinance  of  April  23,  which  passed  with  these 
changes,  as  dividing  the  West  into  ten  States.  Cf.  one  of  the  latest,  Merriam, 
Hist,  of  the  Ordinance,  12.  It  is  even  stated  that  there  were  to  be  ten  States 
all  northwest  of  the  Ohio.  The  number  provided  for  by  the  second  report 
entirely  on  this  side  of  the  river  is  limited  to  seven.  The  estimates  for  the 
whole  West,  south  as  well  as  north  of  the  Ohio,  necessarily  vary  with  the 
amount  of  unceded  land  taken  into  consideration.  If  everything  west  of  the 
Kenawha  meridian  is  divided,  there  results  fifteen  States.  If  the  same  restric 
tion  which  the  committee  first  intended,  is  made,  as  to  the  part  between  the 
meridians,  and  if  the  division  is  otherwise  carried  to  parallel  31°,  the  plan  gives 
thirteen  States.  See  Map  II. 


DIVISION    OF    THK    \VKST    IN    THE    ORDINANCE    OF 
APRIL    23,     1784. 


Evolution  of  the  Ordinance  of  1787.  25 

In  the  consideration  of  the  report  by  Congress,  further 
amendments  were  made,  some  of  which  touched  the  ordi 
nance  at  vital  points.  On  April  19  the  proviso  limiting 
slavery  was  dropped.  A  North  Carolina  delegate  '  moved 
to  have  the  clause  struck  out,  and  upon  the  question 
whether  it  should  stand  or  not,  it  failed  to  receive  the 
requisite  number  of  votes.  After  further  amendment  dur- 


1  The  motion  was  made  by  Richard  D.  Spaight,  who  came  to  Congress  May 
13,  J-7&3  •  Sparks,  Writings  of  Washington,  xii. ,  424.  Upon  the  question, 
"  Shall  the  words  moved  to  be  struck  out  stand?"  Mr.  Howell  required  the 
yeas  and  nays.  The  votes  were  as  follows  : 

New  Hampshire,  aye  :  Abiel  Foster  and  Jonathan  Blanchard. 

Massachusetts,  aye  :    Elbridge  Gerry  and  George  Partridge. 

Rhode  Island,  aye  :  William  Ellery  and   David  Howell. 

Connecticut,  aye  :    Roger  Sherman  and  James  Wadsworth. 

New  York,  aye  ;    Charles  De  Witt  and  Ephraim  Paine. 

New  Jersey,  —  :  Samuel  Dick,  aye;   John  Beatty,  absent. 

Pennsylvania,  aye  :  Thomas  Mifflin,  John  Montgomery,  and  Edward  Hand. 

Maryland,  no  :   James  Me  Henry  and  Thomas  Stone. 

Virginia,  no:  Thomas  Jefferson,  aye  ;  Samuel  Hardy,  no  ;  John  F.  Mercer, 
no;  James  Monroe,  absent. 

North  Carolina,  — :    Hugh  Williamson,  aye;    Richard  D.   Spaight,  no. 

South  Carolina,  no  :    Jacob  Read  and  Richard  Beresford. 

Georgia,  absent. 

The  vote  of  New  Jersey  could  not  be  counted,  since  but  one  delegate  was 
present.  Mr.  Monroe  would  have  voted  with  Mr.  Jefferson,  had  he  not  been 
absent  on  account  of  sickness,  and  thus  would  have  prevented  a  negative  vote 
by  Virginia  ;  Jefferson  to  Madison,  April  25,  1784,  in  Bancroft,  Hist,  of  For 
mation  of  Const.,  i.,  356-8.  Jefferson  regretted  the  failure  of  the  proposition 
and  the  individual  vote  of  Virginia  in  the  negative  ;  but  it  must  have  been 
apparent  to  others  besides  Pickering  that  "  the  admission  of  it  (slavery)  for  a 
day  or  an  hour  ought  to  have  been  forbidden  "  :  Letter  of  Pickering  to  King, 
March,  8,  1785,  Pickering,  Life  of  Pickering,  i.,  510.  Cf,  the  following: 
Randall,  Life  of  Jefferson,  i.,  399-400,  citing  Journals  of  Congress,  iv.,  373 
(Way  and  Gideon's  Edition)  ;  Donaldson,  Public  Domain,  148  ;  St.  Clair 
Papers,  ii.,  605  ;  Life  of  Cutler,  ii.,  410-1  ;  Dunn,  Indiana,  184-5  I  King, 
Ohio,  178-9  ;  Sato,  Hist,  of  Land  Question,  84-5  ;  McMaster,  Hist,  of  People 
of  U.S.,  167;  Dillon,  Hist,  of  Indiana,  182  ;  Bancroft,  Hist,  of  Formation 
of  Const.,  i.,  156,  and  Hist,  of  U.  S.  (Fin.  Rev.),  vi.,  117-8  ;  Ohio  Arch,  and 
Hist.  Quar.,  i.,  12  ;  ii.,  37  ;  Ben  ton,  Thirty  Years'  View,  i.,  133  ;  Poole,  Dr. 
Cutler  and  the  Ordinance  of  ij8j,  No.  Am.  Rev^e^v,  vol.  122,  p.  238  ;  R.  /. 
in  Continental  Congress,  494  ;  Wilson,  Rise  and  Fall  of  Slave  Power,  i.,  32  ; 
Williams,  Hist,  of  Negro  Race  in  Amer.,  i.,  416  ;  Works  of  Webster,  iii.,  283  ; 
Hinsdale,  Old  Northwest,  273  ;  Stone,  in  Penn.  Mag.  of  Hist,  and  Biog., 
xiii.,  314  ;  Merriam,  Hist,  of  Ordinance,  10-12. 


26  Evolution  of  the  Ordinance  0/1787. 

ing  the  next  two  days  the  ordinance  was  passed  April  23, 
1784,  and  became  the  law  for  the  western  territory. 

Some  of  the  other  changes  made  in  the  ordinance  before 
it  passed  were  by  no  means  unimportant.  The  clause 
against  hereditary  titles  was  omitted,  and  three  new  "  prin 
ciples  "  inserted.  One  denied  the  right  of  future  States 
formed  under  the  ordinance  to  "  interfere  with  the  primary 
disposal  of  the  soil  by  the  United  States  in  Congress  assem 
bled,"  or  "  with  the  ordinances  and  regulations  which  Con 
gress  may  find  necessary  for  securing  the  title  in  such  soil 
to  the  bona-fide  purchasers."  No  lands  belonging  to  the 
United  States  should  be  taxed,  and  non-resident  owners  of 
land  in  the  prospective  States  should  not  be  taxed  higher 
than  resident  owners  before  the  admission  of  their  State  to 
Congress  by  delegate.1  A  motion  made  by  Mr.  Read  of 
South  Carolina  during  the  discussion  of  the  ordinance  is  of 
more  significance  as  pointing  out  the  exact,  way  in  which 
the  Federal  government  afterwards  controlled  the  new 
territories,  than  for  its  effect  upon  the  plan  as  passed.  He 
proposed  that  "  until  such  time  as  the  settlers  aforesaid 
shall  have  adopted  the  constitution  and  laws  of  some  one 
of  the  original  states  as  aforesaid  for  a  temporary  govern 
ment,  the  said  settlers  shall  be  ruled  by  magistrates  to  be 
appointed  by  the  United  States  in  Congress  assembled, 
and  under  such  laws  and  regulations  as  the  United  States 
in  Congress  assembled  shall  direct."  2  This  did  not  again 
find  expression  even  as  a  report  of  a  committee  until  two 
years  later. 

Such  is  the  well-known  "  Ordinance  of  1/84,"  which, 
though  inoperative,  was  legally  in  force  until  1787.  It  has 
been  characterized  as  "  a  compromise  measure  dictated  by 
the  general  feeling  in  Congress,"  3  but  there  is  little  or  no 
ground  for  so  designating  it.  Jefferson  gives  a  possible 
reason  for  its  receiving  favor  enough  to  be  passed,  in  saying 

1  Compare  the  two  drafts  in   Donaldson,    147—9  ;  Merriam,  8— 10  ;    Force's 
History,  in  St.  Clair  Papers,  ii.,  App.  i.,  and  Life  of  Cutler ;  ii.,  App.  D.  ;  etc. 
8  Life  of  Cutler,  i.,  362-4  ;   Merriam,  Hist,  of  Ordinance,  12.  l 
'Dunn,  Indiana,  184. 


Evolution  of  the  Ordinance  of  1787-  27 

to  Madison  :  "  The  act  of  Congress  now  enclosed  to  you  will 
show  you  that  they  have  agreed  to  it  because  it  extends 
not  only  to  the  territory  ceded  but  to  be  ceded,  and  shows 
how  and  when  they  shall  be  taken  into  the  Union."  On 
the  whole,  this  attempt  to  legislate  for  the  West  was  more 
successful  than  previous  trials.  It  did  indeed  become  a  law, 
but  had  little  application  to  the  region  because  systematic 
settlement  could  not  be  made.  '"On  this  point  Congress  had 
not  yet  spoken,  since  the  Indians  possessed  the  lands.  The 
framers  of  this  law  were  not  so  unwise  as  they  might  seem 
at  first  glance,  for  it  was  intended  to  enact,  at  the  same 
time,  a  law  to  govern  the  disposal  of  the  lands.  In  this 
way  immediate  settlement  would  have  begun.  Jefferson 
tells  Madison  in  the  letter  just  quoted  that  "  the  minuter 
circumstances  of  selling  the  ungranted  lands  will  be  pro 
vided  in  an  ordinance  already  prepared  but  not  reported." ' 
It  was  presented  to  Congress  in  due  time,  but  for  some 
reason  was  not  favorably  received.3  Without  some  such 
regulation  the  Ordinance  of  1784  was  a  dead  letter. 

1  April  25,  1784  :  Bancroft,  Hist,  of  Formation  of  Const.,  i.,  356. 

1  Bancroft,  Hist,  of  Formation  of  Const.,  i.,  356. 

3  Jefferson  was  chairman  of  the  committee  who  reported  this  ordinance  for 
locating  and  disposing  of  the  public  lands,  his  associates  being  Williamson  of 
North  Carolina,  Howell  of  Rhode  Island,  Gerry  of  Massachusetts,  and  Read  of 
South  Carolina.  Six  States  voted  squarely  against  the  report.  Cf.  Randall, 
Lift  of  Jefferson,  i.,  400  ;  Merriam,  Hist,  of  Ordinance,  13-14. 


V. 

THE  REVIVAL  OF  THE  SLAVERY  PROVISO. 

BIBLIOGRAPHICAL  NOTE. — Dunn,  Indiana,  190-4  ;  Bancroft,  Hist,  of  U.  S. 
(Fin.  Rev.),  vi.,  132-4,  and  Hist,  of  Formation  of  Const.,  i.,  178-80,  417-19; 
Life  of  Cutler,  i.,  353  ;  St.  Clair  Papers,  i.,  123;  Merriam,  Hist,  of  Ordinance, 
14-7  ;  Force,  Hist,  of  Ordinance,  in  St.  Clair  Papers,  ii.,  606-7,  and  Life  of 
Cutler,  ii.,  411-2  ;  Pickering,  Life  of  Pickering,  i.,  504-11  ;  Donaldson,  Pub 
lic  Domain,  149-50  ;  Curtis,  Hist,  of  Const.,  i.,  299  ;  Hinsdale,  Old  Northwest, 
273-4  »  Stone,  in  Penn.  Mag.  of  Hist,  and  Biog.,  xiii.,  314-5  ;  Wilson,  Rise 
and  Fall  of  Slave  Power,  i.,  32  ;  McMaster,  Hist,  of  People  of  U.  S.,  i.,  253, 
Washington,  Writings  of  Jefferson,  ix.,  276  ;  Journals  of  Congress,  iv.,  481-2  ; 
Papers  of  Old  Congress,  xxxi.,  327,  329,  331  ;  Ohio  Arch,  and  Hist.  Quar., 
ii.,  38. 

Thus  far  the  strongest  proposition  to  restrict  slavery  from 
the  West  was  contained  in  the  first  plan  for  a  new  State. 
While  it  cannot  be  asserted  positively  that  Timothy  Pick 
ering  was  the  author  of  this  feature  of  it,  his  later  course 
shows  that  it  must  have  received  his  heartiest  approval. 
Two  years  afterwards  he  appeared  again  as  a  strong  oppo 
nent  of  slavery.  Like  many  other  soldiers,  he  was  looking 
beyond  the  Alleghanies  to  settle.  Just  before  the  enact 
ment  of  the  well-known  land  ordinance  of  1785,  he  became 
solicitous  about  the  manner  of  locating  claims  in  the  new 
country,  and  thought  that  some  system  should  be  immedi 
ately  provided.  Elbridge  Gerry  was  representing  Massa 
chusetts  in  Congress  during  1784-5,  and  it  was  to  him  that 
Mr.  Pickering  wrote,  March  i,  1785,  in  order  to  learn  what 
the  general  government  would  do  in  the  matter.1  Mr. 
Gerry  was  at  that  time  on  the  point  of  returning  home,  and 
therefore  sent  him  a  copy  of  a  bill  then  before  Congress,  and 
referred  him  to  the  other  Massachusetts  representative, 

1  Pickering,  Life  of  Pickering,  i.,  504-6. 
28 


Evolution  of  the  Ordinance  of  1787.  29 

Rufus  King.  This  bill  was  a  plan  for  locating  and  survey 
ing  lands,  which  later  became  a  law.  It  has  its  own  history 
and  in  itself  little  concerns  the  acts  for  governing  the  West. 
But  in  commenting  upon  it  in  a  letter  to  King,1  Mr. 
Pickering  took  occasion  to  refer  to  the  clause  on  slavery 
erased  by  the  previous  Congress  from  Jefferson's  draft. 
Having  mentioned  the  act  of  April  23,  1784,  he  wrote 
further:  "'There  is  one  article  in  the  report  of  the  commit 
tee  on  which  that  act  was  made  which  I  am  extremely  sorry 
to  see  was  omitted  in  the  act.  The  committee  proposed 
that  after  the  year  1800  there  should  be  no  slavery  in  the 
new  States.  I  hardly  have  the  patience  to  write  on  a  sub 
ject  in  which  what  is  right  is  so  obvious  and  so  just,  and 
what  is  wrong  is  so  derogatory  to  Americans  above  all  men, 
so  inhuman  and  iniquitous  in  itself."  He  said  much  of  ex 
cluding  slavery  from  the  unsettled  country,  and  finally 
appealed  to  him  to  make  one  more  effort  "  to  prevent  so 
terrible  a  calamity."  2  Only  eight  days  after  the  date  of 
Pickering's  letters,  Rufus  King  brought  forward  the  follow 
ing  motion  :  "  Resolved  that  there  shall  be  neither  slavery 
nor  involuntary  servitude  in  any  of  the  States  described  in 
the  resolve  of  Congress  of  the  twenty-third  day  of  April, 
A.D.  1784,  otherwise  than  in  punishment  of  crimes  whereof 
the  party  shall  have  been  personally  guilty.  And  that  this 
regulation  shall  be  an  article  of  compact  and  remain  a  fun- 


1  Pickering,  Life  of  Pickering,  i.,  506-10,  two  letters  dated  March  8,  1785. 

4  One  of  Pickering's  statements  has  been  objected  to  as  inaccurate.  He  says  : 
' '  To  suffer  the  continuance  of  slaves  until  they  can  gradually  be  emancipated  in 
states  already  over-run  with  them,  may  be  pardonable,  because  unavoidable 
without  hazarding  greater  evils  ;  but  to  introduce  them  into  countries  where 
none  now  exist — countries  which  have  been  talked  of,  which  we  have  boasted  of 
as  asylums  to  the  oppressed  of  the  earth — can  never  be  forgiven." — Pickering, 
Life  of  Pickering,  i.,  510.  To  be  sure,  there  was  a  handful  of  slave-holding 
French  in  the  small  villages  on  the  Wabash,  Illinois,  and  Mississippi ;  and  who 
ever  caused  the  slave-clause  to  be  inserted  in  the  draft  of  March  i,  1784,  may 
have  been  thinking  also  of  the  new  settlements  in  the  Kentucky  and  Tennessee 
region.  Yet  the  country  was  practically  unsettled,  and  the  character  of  new 
territories  and  States,  as  affected  by  the  toleration  or  prohibition  of  slavery,  was 
still  to  be  determined.  Cf.  Dunn,  Indiana,  192,  note  i  ;  Stone,  Penn.  Mag. 
of  Hist,  and  Bio g.,  xiii.,  327,  note. 


30  Evolution  of  the  Ordinance  of  1 787. 

damental  principle  of  the  constitutions  of  the  thirteen 
original  States,  and  each  of  the  States  described  in 
the  said  resolve  of  the  twenty-third  day  of  April,  1784." ' 
He  moved  that  the  proposition  be  committed,  and  upon 
being  carried3  it  was  intrusted  to  Rufus  King,  David  Howell, 
and  William  Ellery.  Their  report,  which  was  presented  by 
Mr.  King  on  April  26,  differed  in  important  points  from 
the  motion  committed.  It  restored  the  lease  of  life  to 
slavery,  and  added  the  afterward  famous  fugitive-slave 
clause.  The  report  of  the  committee  was  as  follows  :  "  Re 
solved  that  after  the  year  1800  of  the  Christian  era  there 
shall  be  neither  slavery  nor  involuntary  servitude  in  any  of 
the  states  described  in  the  resolve  of  Congress  of  the  twenty- 
third  day  of  April,  1784,  otherwise  than  in  punishment  of 
crimes  whereof  the  party  shall  have  been  personally  guilty  ; 
and  that  this  regulation  shall  be  an  article  of  compact,  and 
remain  a  fundamental  principle  of  the  Constitutions  between 
the  thirteen  original  states  and  each  of  the  states  described 
in  the  said  resolve  of  Congress  of  the  twenty-third  day  of 
April,  1784,  any  implication  or  construction  of  the  said 
resolve  to  the  contrary  notwithstanding.  Provided  always 
upon  the  escape  of  any  person  into  any  of  the  states 
described  in  the  said  resolve  of  Congress  of  the  twenty- 
third  day  of  April,  1784,  from  whom  labor  or  service  is  law 
fully  claimed  in  any  one  of  the  thirteen  original  states,  such 
fugitive  may  be  lawfully  reclaimed  and  carried  back  to  the 
person  claiming  his  labor  or  service  as  aforesaid,  this  resolve 
notwithstanding."  It  is  evident  from  the  resolutions  of 

1  Donaldson,  Public  Domain,  149  ;    Bancroft,  Hist,  of  Formation  of  Const., 
i.,  417,  citing  Papers  of  Old  Congress,  No.  31,  p.  327  ;  and  Hist,  of  U.  S. 
(Fin.  Rev.),  vi.,  133,  citing  also  Journals  of  Congress,  iv.,  481-2  ;  Merriam, 
Hist,  of  Ordinance,  14-5.     The  resolution  is  in  King's  handwriting. 

2  The  vote  was  :     Aye,  N.  H.,   Mass.,   R.   I.,  Conn.,  N.  Y.,  N.  J.,  Penn., 
Md.  ;   No,  Va.,   N.   Car.,  S.  Car.     Of  Maryland,  Henry  and  Kinsman  voted 
aye ;  McHenry,  no.     Of  Virginia,  Hardy  and  Lee  (R.  H.)  voted  no ;  Grayson, 
aye.     Delaware  had  no  delegates  present,  and  Georgia  had  but  one. 

3  Printed  in  Bancroft,  Hist,  of  Formation  of  Const.,  i.,  418,  where  is  cited 
Papers  of  Old  Congress,  xxxi. ,   329  ;  endorsed  in  the  handwriting  of  King  : 
"  Report  on  Mr.  King's  motion  for  the  exclusion  of  slavery  in  the  new  states." 
Papers  of  Old  Congress,  xxxi.,  331,  is  also  cited.    Cf.  Bancroft,  Hist,  of  U.  S. 
(Fin.  Rev.),  vi.,  133  ;  Merriam,  Hist,  of  Ordinance,  15-6. 


Evolution  of  the  Ordinance  of  1787.  31 

March  15  that  Mr.  King  intended  to  restore  the  provision 
in  the  draft  of  March  I,  1784,  except  the  clause  tolerating 
slavery  for  a  time.  The  language  is  very  similar,  and  the 
motion  was  to  stand  with  the  ordinance  of  April  23,  1784, 
as  one  of  the  principles  of  the  "  charter  of  compact."  1  The 
report  has  even  a  closer  resemblance,  for  the  clause  extend 
ing  the  time  of  slavery  until  1801  is  added. 

The  source  of  the  fugitive-slave  clause  or  the  occasion  of 
its  introduction  is  not  known  with  certainty.  A  committee 
of  northern  men,  from  States  where  slavery  was  becoming 
more  and  more  unpopular,  would  hardly  have  introduced 
such  a  provision  without  pressure  from  outside  the  commit 
tee.  There  must  have  been  some  occasion  for  inserting  it. 
But  without  more  evidence  of  the  political  side  of  the 
measures  taken  by  the  Old  Congress  at  this  time,  it  is  unsafe 
to  assign  a  cause.  A  precedent  for  such  a  provision, 
although  one  which  there  is  little  reason  to  believe  the  com 
mittee  had  in  mind,  is  found  in  the  Articles  of  Confedera 
tion  between  the  plantations  under  the  government  of 
Massachusetts,  New-Plymouth,  Connecticut,  and  New 
Haven,  of  the  year 


1  Compare  the  original  provision  :  "  That  after  the  year  1800  of  the  Christian 
Era  there  shall  be  neither  slavery  nor  involuntary  servitude  in  any  of  the  said 
States,  otherwise  than  in  punishment  of  crimes,  whereof  the  party  shall  have 
been  duly  convicted  to  have  been  personally  guilty. "  .  .  .  .  "  That  the  preced 
ing  articles  shall  be  formed  into  a  charter  of  compact,  ....  and  shall  stand  as 
fundamental  constitutions  between  the  thirteen  original  states  and  those  newly 
described"  ;  Above,  Sec.  IV.,  (a).  Italicised  words  are  those  common  to  the 
motion  of  King  and  the  draft  of  March  I,  1784.  Jefferson  speaks  of  King's 
motion  as  his  own,  in  these  words  :  "  On  the  i6th  of  March,  1785,  it  was  moved 
that  the  same  proposition  (which  he  had  just  mentioned  as  defeated)  should  be 
referred  to  a  committee,  and  it  was  referred  by  the  vote  of  eight  states  against 
three  "  :  Washington,  Writings  of  Jefferson,  ix.,  276. 

5  The  clause  relative  to  the  same  subject  in  this  old  document  is  as  follows  : 
"It  is  also  agreed  yt  if  any  servante  run  away  from  his  maister  into  another  of 
these  confederated  jurisdictions,  that  in  such  case,  upon  ye  certificate  of  one 
magistrate  in  ye  jurisdiction  out  of  which  ye  said  servante  fledd,  or  upon  other 
due  proofe,  the  said  servante  shall  be  delivered,  either  to  his  maister,  or  any  other 
yt  pursues  &  brings  such  certificate  or  proofe." — William  Bradford's  History  of 
Plymouth  Plantations,  in  Mass.  Hist.  Coll.,  Fourth  Series,  iii.,  421  ;  all  the 
"Articles,"  Ibid.,  416-23.  After  the  above  clause  is  a  longer  paragraph  stipu 
lating  about  the  return  of  fugitive  prisoners  or  criminals.  Cf.  on  the  subject  in 


32  Evolution  of  the  Ordinance  of  1787. 

The  report  of  April  6  was  assigned  for  consideration  April 
14,  but  as  late  as  May,  King  was  holding  it  until  the  land 
ordinance,  then  under  way,  should  pass.1  It  seems  never 
to  have  been  called  up  again  as  a  separate  measure. 

general:  Dunn,  Indiana,  193;  Bancroft,  Hist,  of  U.  S.  (Fin.  Rev.),  vi.,  133; 
and  Hist,  of  Formation  of  Const.,  i.,  418  ;  Stone,  Ordinance  0/1787,  in  Penn. 
Mag.  of  Hist.,  and  Biog.,  xiii.,  315;  Ohio  State  Reports,  Critchfield,  ix.,  125  ; 
where  the  assertion  is  made  that  the  clause  was  copied  from  the  old  compact ; 
Merriam,  Hist,  of  Ordinance,  15-16. 

1  Grayson  to  Madison,  May  i,  1785  :  "  Mr.  King,  of  Mass.,  has  a  resolution 
ready  drawn,  which  he  reserves  till  the  ordinance  is  passed,  for  preventing 
slavery  in  the  new  state.  I  expect  seven  states  may  be  found  liberal  enough  to 
adopt  it  "  ;  Bancroft,  Hist,  of  Formation  of  Const.,  i.,  435. 


VI. 

PLANS    FOR    FEWER    STATES. 
(a) — Monroe  s  Influence. 

Up  to  this  point  the  man  who  had  exerted  the  greatest 
influence  in  the  matter  of  organizing  the  West  was  probably 
Jefferson.  But  in  May,  1784,  he  left  the  halls  of  legislation 
for  other  work  assigned  him,  and  his  personal  influence 
ceased.  James  Monroe  brought  about  the  next  change  of 
ideas  regarding  the  new  territory.  These  two  men  were 
sent  by  their  State  to  Congress  in  1783.'  Jefferson,  how 
ever,  had  been  connected  with  this  body  at  its  inception, 
and  long  since  had  become  familiar  with  the  questions  with 
which  it  had  to  deal.  He  was  thus  prepared  to  take  an 
active  part  in  the  schemes  for  the  government  of  the  West, 
when  legislation  to  that  end  was  attempted  in  1784.  On 
the  other  hand,  Monroe  was  younger  than  Jefferson  by 
fifteen  years,2  and  had  not  that  lively  interest  in  matters  of 
national  concern  which  Jefferson  showed.  In  1785,  how 
ever,  Monroe  became  sufficiently  interested  in  the  new 
domain  to  visit  the  trans-Ohio  lands,  in  order  to  investigate 
the  subject  for  himself.  In  the  summer  of  this  year  he  in 
dicated  3  to  Jefferson  his  intention  to  attend  the  treaty- 
conference  with  the  Indians,  which  was  about  to  be  held  at 
the  mouth  of  the  Great  Miami,  and  in  August  turned  his 

1  Sparks,  Writings  of  Washington,  xii.,  424  ;  Linn,  Life  of  Jefferson,  136. 

2  Randall,  Life  of  Jefferson,  i.,  17  ;  Gilman,  Monroe,  4. 

3  July  15,  1785  :   "I  have  it  in  contemplation,  after  a  few  weeks,  to  set  out 
for  the  Ohio,  to  attend  the  treaty  above  mentioned"  :  Bancroft,  Hist,  of  For 
mation  of  Const.,  i.,  445. 

33 


34  Evolution  of  the  Ordinance  of  1787. 

face  westward.1     By  December a  he  was  again  at  his  post  in 
New  York. 

Whatever  the  views  of  Monroe  may  have  been  previous 
to  this,  no  doubt  now  remained.  He  had  seen  and  he  knew 
whereof  he  spoke.  He  believed  the  previous  measures  of 
Congress  regarding  the  division  of  the  West  into  States  had 
been  impolitic :  the  interests  of  the  Ohio  valley  would  be 
very  little  connected  with  those  of  the  Atlantic  slope,  and 
therefore  the  formation  of  many  States  would  not  tend  to 
preserve  the  ascendancy  of  the  East ;  the  unproductiveness 
of  the  soil  and  the  consequent  slow  development  of  the  coun 
try  showed  also  that  a  smaller  number  of  new  States  should 
be  formed.3  On  this  account  Monroe  took  a  firm  stand  for 
fewer  States.  He  believed  that  the  congressional  resolution 
of  October  10,  1780,  which  limited  districts  to  150  miles 
square,  had  governed  the  division  made  in  the  ordinance  of 


1  Monroe  to  Jefferson,  New  York,  August  25,  1785  :  Ibid.,  451. 

2  Letters  dating  in  December:  Bancroft,  Hist,  of  Formation  of  Const.,  i.,  471, 
475  \  cf">  Writings  of  Madison,  i.,  203. 

3  Monroe  to  Jefferson,  New  York,  January  19,  1786  :     "  My  several  routes 
westward,  with  the  knowledge  of  the  country  I  have  thereby  obtained,  have  im 
pressed  me  fully  with  the  conviction  of  the  impolicy  of  our  measures  respecting 
it.     I  speak  not  in  this  instance  of  the  ordinance  for  the  survey  and  disposal 
of  it,  but  of  those  which  became  necessary,  and  were  founded  upon  the  act  of 
cession  from  the  state  of  Virginia.     I  am  clearly  of  the  opinion  that  to  many  of 
the  most  important  objects  of  a  federal  government,  their  interests,  if  not  op 
posed,  will  be  but  little  connected  with  ours  ;  instead  of  weakening  theirs  and 
making  it  subservient  to  our  purposes,  we  have  given  it  all  the  possible  strength 
we  could  ;  weaken  it  we  might  also,  and  at  the  same  time  (I  mean  by  reducing 
the  number  of  states)  render  them  substantial  service.    A  great  part  of  the  terri 
tory  is  miserably  poor,  especially  that  near  Lakes  Michigan  and  Erie  ;  and  that 
upon  the  Mississippi  and  the  Illinois  consists  of  extensive  plains  which  have  not 
had,  from  appearances,  and  will  not  have  a  single  bush  on  them  for  ages.     The 
districts,  therefore,  within  which  these  fall,  will,  perhaps,  never  contain  a  suffi 
cient  number  of  inhabitants  to  entitle  them  to  membership  in  the  Confederacy, 
and  in  the  meantime  the  people  who  may  settle  within  them  will  be  governed  by 
the  resolutions  of  Congress,  in  which  they  will  not  be  represented. " — Bancroft, 
Hist,  of  Formation  of  Const.,  i.,  480-1.      C/.,  Lee  to  Washington,  October  II, 
1785  :  Ibid.,  460-1.     With  this  compare  Jefferson's  letter  to  Monroe,   dated 
Paris,  July  9,  1786,  giving  reasons  why  it  would  be  well  to  make  the  states 
smaller  and  more  numerous  :  Washington,  Works  of  Jefferson  (Edition  of  1884), 
i.,  586-8. 


Evolution  of  the  Ordinance  of  1787.  35 

1784,  and  was  still  binding  because  incorporated  into  the 
deed  of  cession  of  Virginia.1  After  sounding  members  of 
Congress  on  the  subject  and  finding  them  favorable,2  he 
moved  to  refer  the  matter  to  a  grand  committee.  In  a  re 
port,  March  24,  1786,"  it  was  recommended  that  the  western 
lands  be  divided  into  not  less  than  two  nor  more  than  five 
States,  and  that  Virginia  should  revise  her  act  of  cession. 
By  amendment  the  report  was  made  to  read  :  "  That  it  be 
and  hereby  is  recommended  to  the  legislature  of  Virginia  to 
take  into  consideration  their  act  of  cession  and  revise  the 
same  so  far  as  to  impower  the  United  States  in  Congress 
assembled  to  make  such  a  division  of  the  territory  of  the 
United  States  lying  northerly  and  westerly  of  the  River 
Ohio  into  distinct  republican  states,  not  more  than  five  nor 
less  than  three  as  the  situation  of  that  country  and  future 
circumstances  may  require." 4  This  was  adopted  as  amended. 
It  assigned  various  reasons  for  the  change  :  "  Whereas  it 
appears  .  .  .  that  the  laying  it  out  and  forming  it  into 
states  of  the  extent  mentioned  in  the  resolution  of  Congress 
of  the  tenth  of  October,  1780,  and  in  one  of  the  conditions 
contained  in  the  cession  of  Virginia,  will  be  productive  of 
many  and  great  inconveniences  ;  that  by  such  a  division  of 
the  country,  some  of  the  new  states  will  be  deprived  of  the 
advantages  of  navigation,  some  will  be  improperly  inter 
sected  by  lakes,  rivers,  and  mountains,  and  some  will  contain 
too  great  a  proportion  of  barren,  unimprovable  land,  and  of 
consequence  will  not  for  many  years  if  ever  have  sufficient 
number  of  inhabitants  to  form  a  respectable  government, 

1  Hening,    Statutes,  xi.,  327,  572  ;    Donaldson,   Public  Domain,  69  ;    Chase, 
Statutes  of  Ohio,  i.,  62. 

2  Monroe  to  Madison,  December  19,  1785  :     "I  find  the  most  enlightened 
members  here     .     .     .     well  inclined  to  a  revision  of  the  compact  between  the 
United  States  and  Virginia  respecting  the  division  of  the  country  beyond  the 
Ohio  "  :  Bancroft,  Hist,  of  Formation  of  Const.,  i.,  472. 

3  Merriam,  Hist,  of  Ordinance,  17;  Bancroft,  Hist,  of  U.  S.  (Fin.  Rev.),  vi., 
278,  citing  Papers  of  Old  Congress,  xxx.,  75  ;  Hist,  of  Formation  of  Const.,  ii., 
99,  100  ;  Donaldson,  Public  Domain,  150  ;  Force,  History  of  Ordinance \  in  St. 
Clair  Papers,  ii.,  607,  and  Life  of  Cutler,  ii.,  412. 

<     4  Merriam,  Hist,  of  Ordinance,  17-8,  citing  Journals  of  Congress,  iv.,  663. 


36  Evolution  of  tJie  Ordinance  of  1787. 

and  entitle  them  to  a  seat  and  voice  in  the  federal  council : 
And  whereas  in  fixing  the  limits  and  dimensions  of  the  new 
states,  due  attention  ought  to  be  paid  to  natural  boundaries 
and  a  variety  of  circumstances  which  will  be  pointed  out  by 
a  more  perfect  knowledge  of  the  country,  so  as  to  provide 
for  the  future  growth  and  prosperity  of  each  state,  as  well 
as  for  the  accommodation  and  security  of  the  first  adven 
turers."  ' 

Monroe  did  not  embody  his  political  reasons,  but  his  hand 
is  easily  traced.  The  act  of  1780  had  also  been  cited  by 
Massachusetts  in  her  deed  of  cession,8  and  as  if  at  this  fur 
ther  thought  the  same  committee  brought  forth  a  second 
report.8  Virginia  and  Massachusetts  were  recommended  to 
revise  their  acts  of  cession,  and  thereafter  Congress  was  to 
have  no  restriction  upon  its  power  to  divide  the  northwest 
ern  territory  into  states,  except  one  providing  that  "  the 
said  territory  shall  be  divided  into  not  less  than  two  and  not 
more  than  five  states."  From  this  it  would  appear  that  the 
original  idea  of  the  committee  regarding  the  number  of  new 
states  was  preferred. 

The  Ordinance  of  1784  was  still  in  force.  The  motion  of 
Rufus  King  in  1785  was  supplementary  to  it.  But  this 
movement  of  Monroe  meant  more  and  portended  a  complete 
revision  of  the  law  for  the  West.  Soon  a  committee  was 
appointed  *  to  consider  and  report  the  form  of  a  temporary 

1  Merriam,  Hist,  of  Ordinance,  17. 

8  In  the  acts  and  deed  of  Massachusetts  the  resolve  of  Congress  was  only 
cited  as  the  one  according  to  which  the  cession  was  made  and  the  lands  were 
expected  to  be  disposed  of.  Cf.  Hening,  Statutes,  xi.,  327,572  ;  Laws  of 
the  Commonwealth  of  Mass.  (1807),  i.,  215,  241.  Virginia  embodied  the  lan 
guage  of  the  resolve  of  1780,  defining  how  large  the  new  States  should  be. 

3  Bancroft,  Hist,  of  U.  S.  (Fin.  Rev.),  vi.,  278,  cites  the  report  itself  in  Pa- 
pers  of  Old  Congress,   xxx.,  79  ff.,   as  not  dated  at  all.     The  substance  of   the 
report  Monroe  states  in  writing  to  Jefferson,  May  n,  1786  :      "A  proposition, 
or  rather  a  report,  is  before  Congress,  recommending  it  to  Virginia  and  Massa 
chusetts  to  revise  their  acts  as  to  that  condition,  so  as  to  leave  it  to  the  United 
States   to  make  what  division  of   the  same,   future  circumstances  may  make 
necessary,  subject  to  this  proviso  :      '  that  the  said  territory  be  divided  into  not 
less  than  two  and  not  more  than  five  states.'" — Bancroft,  Hist,  of  For /nation 
of  Const.,  i.,  502-3. 

4  This  was  by  a  motion  of  Nathan  Dane  of  Massachusetts.     The  motion  is 


Evolution  of  the  Ordinance  of  1787.  37 

government.  At  the  head  of  this  committee  was  Monroe, 
with  William  S.  Johnson,  Rufus  King,  John  Kean,  and 
Charles  Pinckney.1  The  last  two  were  from  South  Carolina, 
and  Johnson  from  Connecticut.  The  importance  of  their 
report  on  May  10,  1786,'  as  the  point  of  departure  in  a  new 
scheme  of  government  for  the  West,  seems  to  have  been 
overlooked.  It  has  already  been  noted  that  as  early  as  the 
discussions  on  the  plan  of  March  I,  1784,  Jacob  Read  of 
South  Carolina  proposed  to  have  Congress  appoint  magis 
trates  to  govern  the  western  country,  or  districts  of  it,  in 
its  first  stage.3  The  report  of  a  committee  now  gave  spe 
cific  form  to  that  idea.  Congress  was  to  appoint  governor, 
council,  judges,  secretary  to  the  council,4  and  other  officers. 
The  council  was  composed  of  five  members,  and  the  court 
of  five  judges.  Common  law  and  chancery  jurisdiction 
were  given  to  the  court,  and  an  existing  code  of  laws  was  to 
be  adopted.  And  not  only  did  this  report  supply  the  part 
which  the  plan  of  two  years  before  lacked,  but  it  went  fur 
ther.  The  law  of  1784  provided  that  a  new  State  would 
!\have  to  begin  by  using  the  constitution  and  laws  of  one  of 
ythe  old  States,  with  a  legislature  to  alter  the  laws,  composed 
of  members  representing  counties ;  a  permanent  government 
might  be  organized  when  a  district  reached  20,000  popu- 


thought  by  Dr.  Bancroft  to  have  been  made  in  April,  for  which  he  cites  Papers 
of  Old  Congress,  xxx.,  85  :  Hist,  of  U.  S.  (Fin.  Rev.),  vi.,  278,  and  Hist,  of 
Formation  of  Const.,  ii.,  100,  note  3  ;  Winsor,  Ararr.  and  Crit.  Hist.  ofAmer., 

vii.,  537- 

1  Bancroft,  Hist,  of  U.  S.  (Fin.  Rev.),   vi.,  278-79,   and  Hist,  of  Formation 
of  Const.,  ii.,  100  ;  Donaldson,  Public  Domain,  150  ;  Force,  Hist,  of  Ordinance, 
in  St.  Clair  Papers,  ii.,  607,  and  Life  of  Cutler,  ii.,  412. 

2  Bancroft,  Hist,    of  U.  S.  (Fin.  Rev.),  vi.,  279,  and  Hist,  of  Formation  of 
Const. ,\\.,  loo-i  ;  Winsor,  Narr.  and  Crit.  Hist.  ofAmer.,  vii.,  537,  citing  Jour 
nals  of  Congress,  v.,  79  ;  Force,  Hist,  of  Ordinance,  in  St.  Clair  Papers,  ii.,  607, 
y&&  Li fe  of  Cutler ,  ii.,  412;  Donaldson,  Public  Domain,  150.       But  by  far  the 
most  valuable  information  on  this  comes  from  a  letter  of  Monroe  to  Jefferson, 
dated  New  York,  May  ii,  1786,  only  the  next  day  after  the  report  of  the  plan  : 
Bancroft,  Hist,  of  Formation  of  Const.,  \.,  502-3. 

8  Above,  Sec.  IV.  (b). 

4  Stone,  Ordinance  of  1787,  in  Penn.  Mag.  of  Hist,  and  Biog.t  xiii.,  316,  has 
"Secretary  for  the  territory  or  states." 


38  Evolution  of  the  Ordinance  of  1787. 

lation,  and  it  might  be  admitted  when  its  population  reach 
ed  that  of  the  least  numerous  of  the  original  States.  There 
were  now  to  bejtwo  djgtini^stages  of  government,  and  the 
first  should  begin  with  adopted  laws.  But  the  most  striking 
change  is  in  the  appointment  of  officers.  By  the  existing 
law,  the  temporary  organization  of  a  district  should  be 
made  by  its  inhabitants  convened  for  that  purpose.  It  was 
here  proposed  that  Congress  appoint  the  chief  officers.  In 
its  second  stage  which  was  allowed  when  a  certain  popula 
tion  was  reached,  a  legislature  elected  by  the  State  was  to 
be  added  to  governor  and  council,  forming  a  general  assem 
bly.  The  delegate  with  half  privilege  was  added,  just  as  it 
had  been  provided  in  the  draft  of  March  i,  1784.'  The  re 
quirement  for  admission  to  the  Confederation  was  the  same 
as  in  the  law  of  1784.  The  progress  lately  made  in  the  \ 
manner  of  dividing  the  West  was  saved  in  the  report ; 2  but  1 
slavery  found  no  mention.3 

(b) — Graysoris  Influence. 

Here  the  matter  rested  for  a  time.  In  the  next  move  that 
affected  the  substance  of  Monroe's  report  the  influence  of 
another  member  from  Virginia  produced  excellent  results. 
The  solitary  "  aye"  of  William  Grayson  in  the  vote  of  Vir 
ginia  on  Rufus  King's  slavery  motion,4  five  days  after  enter 
ing  Congress,  showed  not  only  his  independence  but  some- 

1  Above,  Sec.  IV.,  (a). 

2  Bancroft,    Hist,  of  U.  S.  (Fin.  Rev.),   vi.,  279,  and  Hist,  of  Formation  of 
Const.,  ii.,  100;  Winsor,  Narr.  and  Crit.  Hist,  of  Amer.,  vii.,  537,  citing  Jour- 
nals  of  Congress,  v. ,  79. 

3  Here  was  an  excellent  opportunity  for  Monroe  and  others  on  the  committee 
to  show  their  principles  regarding  slavery.       Although  Monroe  was  chairman 
of   the    committee,    the  failure   to   mention   slavery  in  the   report  cannot  be 
ascribed  to  him  alone.     It  is  perhaps  singular  that  before,  when  slavery  came 
up  for  decision,  he  was  first  sick  and    again  absent  ;    but   with   these  three 
cases  only,  the  inference  of  Bancroft,  that  Monroe  was  avoiding  difficulties,  is 
hardly  warranted.       King  was  on  the  committee  also,  from  whom  something 
might  have  been  expected.     Cf.  Bancroft,  Hist,  of  U.  S.  (Fin.  Rev.),  vi.,  279, 
and  Hist,  of  formation  of  Const.,  ii.,  101. 

4  Above,  Sec.  V.  ;  Bancroft,  Hist,  of  U.  S.  (Fin.  Rev.),  vi.,  133,  and  Hist,  of 
Formation  of  Const.,  i.,  179- 


Evolution  of  the  Ordinance  of  1787.  39 

what  of  his  general  character ;  and  now  a  second  time  he 
showed  his  good  judgment  and  freedom  from  local  spirit. 
Monroe  had  again  pressed  the  question  of  diminishing  the 
number  of  new  States  to  be  formed,  and  the  grand  commit 
tee  having  his  motion  under  consideration  reported  July  7, 
1786,'  that  the  assent  of  Virginia  should  be  obtained,  to 
divide  the  territory  northwest  of  the  Ohio  into  not  less  than 
two  nor  more  than  five  States.  The  same  had  been  twice 
advised  in  the  spring.  The  report  brought  the  matter  before 
Congress  for  discussion,  and  Grayson  moved2  to  divide  the 
territory  in  the  following  manner:  An  east  and  west  line 
touching  the  most  southern  point  of  Lake  Michigan  should 
separate  the  territory  into  two  parts.  There  should  be  three 
States  between  this  line  and  the  Ohio,  formed  by  meridians 
at  the  mouth  of  the  Wabash  and  Great  Miami  rivers.  Lake 
Michigan  divided  the  country  north  of  the  line  into  two  parts, 
and  these  were  to  be  States.3  The  idea  was  to  have  not  less 
than  five.  The  southern  members  favored  this,  the  north 
ern  opposed,  and  the  motion  was  lost.  But  upon  the  motion 
to  divide  ultimately  into  at  least  three  States,  there  was 
general  agreement.4  Why  the  North  opposed  and  the  South 
favored  a  larger  number  of  States,  is  not  plain  on  the  sur 
face.  Indeed,  Monroe  had  already  favored  a  diminution  of  the 
number  of  States  partly  for  political  reasons.5  There  was  a 
curious  variety  of  opinions  among  the  members,  growing 
out  of  local  jealousy  and  the  Mississippi  question.  In  the 
South  there  was  much  sympathy  with  the  West  in  their  de 
mand  for  the  free  navigation  of  the  Mississippi,  and  a  goodly 
array  of  new  States,  it  was  thought,  would  aid  their  en 
deavors.  An  idea  which  had  influenced  the  South  before, 
may  also  have  had  weight  now, — that  in  the  development 

1  Bancroft,  Hist,  of  U.  S.   (Fin.  Rev.),  vi.,  280,  and  Hist,   of  Formation  of 
Const.,  ii.,  1 02. 

2  Bancroft,  Hist,  of  U.  S.  (Fin.  Rev.),   vi.,  280,  and  Hist,  of  Formation  of 
Const.,  ii.,  102. 

3  See  Map  III. 

4  Bancroft,  Hist,  of  U.  S.  (Fin.  Rev.),  vi.,  280,  and  Hist,  of  Formation  of 
Const.,  ii.,  103,  citing  Journals  of  Congress,  iv.,  662-3. 

6  Above,  Sec.  VI. 


40  Evolution  of  the  Ordinance  of  1 787. 

of  the  West,  the  southern  vote  in  Congress  would  be  in 
creased,  rather  than  the  northern.1  Conservative  ideas  pre 
vailed  among  the  northern  men,  especially  those  from  New 
England,  and  they  failed  to  give  cordial  support  to  measures 
encouraging  development  of  the  West.  A  number  of  cir 
cumstances  favored  the  project  of  Mr.  Jay  to  close  the 
Mississippi:  the  North  opposed  the  South  for  local  reasons; 
northern  States  had  lands  of  their  own  to  settle  ;  they  were 
afraid  that  the  settlements  in  the  West  would  draw  away 
their  population  so  as  to  diminish  their  power  in  Congress ; 
and  the  failure  of  North  Carolina  and  Georgia  to  cede  pro 
voked  general  hostility.2 

If  these  sentiments  of  northern  and  southern  men  ac 
count  for  their  positions  on  the  question  of  dividing  the 
West  into  States,  they  probably  have  quite  as  much  to  do 
with  the  fact  that  the  whole  scheme  of  Monroe  failed  to  be 
acted  upon  at  this  time.  Here  Monroe's  personal  influence 
ends.  He  wrote  to  Jefferson  about  the  middle  of  July : 
"  This  (the  plan  of  government)  hath  not  been  decided  on, 
and  hath  only  been  postponed  in  consequence  of  the  inor 
dinate  schemes  of  some  men  above  alluded  to,  as  to  the 
whole  policy  of  the  affairs  of  that  country.  ...  In  October 
I  shall  leave  this  for  Virginia,  and  shall  settle  in  Fredricks- 
burg  for  the  purpose  of  commencing  the  practice  of  law." 

1  Elliot's  Debates,  iii.,  311,  312,  334-50  :   a  general  discussion  of  the  Missis 
sippi  question  from  these  points  of  view,  by  Madison,  Monroe,  and  Grayson.   Cf. 
Stone,  Ordinance  of  1787,  in  Penn.  Mag.  of  Hist,  and  Biog. ,  xiii.,  329-32  ; 
Oilman,  Monroe,  25-26  ;  McMaster,  Hist,  of  People  of  U.  S.,  i.,  378. 

2  Bancroft,  Hist,  of  U.  S.  (Fin.  Rev.)vi.,   280,  and   Hist,  of  Formation  of 
Const.,  ii.,  103  ;   Dunn,  Indiana,   194-5  ;  see  Bancroft,  Hist,   of  Formation  of 
Const.,  i.  andii.,  printed  letters  and  papers, pa ssim ;  e.  g.,  Otto  to  Vergennes, 

\S  September  10,  1786,  Ibid.,  ii.,  389-93.  -"-Monroe  wrote  to  Madison,  December 
19,  1785,  that  he  found  the  "  most  enlightened  members"  of  Congress  "doubt 
ful  of  the  propriety  of  admitting  a  single  new  one  into  the  Confederacy  "  :  Ibid., 
i.,  471-2.  Washington  wrote,  April  25,  1785,  in  answer  to  a  letter  of  Grayson  : 
"and  (under  the  rose)  a  penetrating  eye  and  close  observation  will  discover, 
through  various  disguises,  a  disinclination  to  add  new  states  to  the  confederation 
westward  of  us"  :  Ibid.,  i.,  431-2.  Cf.  Bancroft,  Hist,  of  Formation  of  Const.  ; 
ii.,  431. 

'"   z  July    16,    1786  :    Bancroft,    Hist,  of  Formation   of  Const.,   ii.,  373.     Cf, 
ibid.,  103,  and  Hist,  of  U.  S.  (Fin.  Rev.),  vi.,  281. 


III. 

DIVISION    ACCORDING    TO    GRAYSOX's    MOTION, 
JULY    '],     1786. 


Evolution  of  the  Ordinance  of  ijty.  41 


A  motion  of  Grayson  during  the  spring  on  a  subject 
touching  western  affairs,  and  ultimately  provided  for  in  the 
territorial  constitution,  must  here  be  noticed.  It  was  con 
nected  with  this  very  subject  of  the  Mississippi,  which  then 
entered  so  largely  into  congressional  politics.  Tax  was 
forbidden  for  navigating  the  tributaries  of  the  Mississippi 
and  St.  Lawrence.  The  Mississippi  question  was  not  here 
settled  ;  but  so  far  as  this  proposition  of  Grayson  was  con 
cerned,  the  Northeast  could  not  object  :  Rufus  King  sec 
onded  the  motion.1  This  move,  traceable  perhaps  to  the 
discussion  of  the  boundaries  of  new  States,  proclaimed  a 
definite  policy  for  the  general  government  with  regard  to 
freedom  of  navigation,  which  it  was  not  slow  to  adopt. 

From  the  work  of  William  Grayson  in  1786,  therefore, 
came  two  important  suggestions  for  the  constitution  of  the 
territory  :  the  clause  proclaiming  free  navigation,  and  the 
idea  of  dividing  the  Northwest  into  five  States  having  cer 
tain  boundaries. 


1  Bancroft,  Hist,  of  U.  S.  (Fin.  Rev.),  vi.,  279,  and  Hist,  of  Formation  of 
Const.,  ii.,  101. 


VII. 

THE  NORTHERN   COMMITTEE. 
(z)—Tke  First  Report. 

The  absence  of  Monroe,  King,  and  Kean  for  various 
reasons  and  at  different  times  during  the  summer  of  1786  ren 
dered  it  necessary  to  put  new  men  on  the  committee.1  John 
son  succeeded  to  the  chairmanship,  and  his  new  associates 
were  Melancthon  Smith,  John  Henry,  and  Nathan  Dane. 
These  three  represented  respectively  New  York,  Maryland, 
and  Massachusetts.  Their  report  was  presented  Septem 
ber  19,  I/86,2  and  the  part  relating  to  the  administration  of 
the  oath  was  discussed  September  29 ; 3  but  it  was  not 
acted  upon  at  the  time.  The  plan  reported  by  Monroe 
was  the  basis,  but  these  differences  are  noted  :  the  court  was 
to  consist  of  three  members ;  the  requirement  for  a  second 
stage  of  territorial  government  was  "  5,000  free  ja^ale  adults 
residing  within  a  district  "  ;  the  payment  of  part  of  the 
Federal  debt  by  the  new  State  was  repeated  from  the 

1  Melancthon   Smith  appears  as  one  of  the  committee  in  August,  probably 
vice  Kean,  who  was  gone  during  th'e  summer  :  Bancroft,  Hist,  of  U.   S.  (Fin. 
Rev.),  vi.,  281,  citing  Journals  of  Cong .,  iv.,  688-9.     £/•  Stone,  Ordinance  of 
1787,  in  Penn.  Mag.  of  Hist,  and  Biog.,  xiii.,  316. 

2  Bancroft,  Hist,  of  U.  S.  (Fin.  Rev.),  vi.,  281,  and  Hist,  of  Formation  of 
Const.,  ii.,  104  ;  Force,  Hist,  of  Ordinance,  in  St.  C lair  Papers,  ii.,  607,  and 
Life  of  Cutler ,  ii.,  412  ;   Donaldson,  Public  Domain,  150  ;  Stone,   Ordinance 
of  1787,  in  Penn.  Mag.  of  Hist,  and  Biog.,  xiii.,  316,  where  September  21  is 
given  ;  Sato,  Land  Question,  91,  citing   Journals  of  Cong.,  iv.,  701-2  ;   Ohio 
Arck.  and  Hist.  Quar.,  ii.,  38. 

3  Bancroft,  in  his  Final  Revision,  vi.,  281,  has  the  same  difference  from  other 
authorities  as  in  his  earlier  work,  Hist,  of  Formation  of  Const.,  ii.,  104,  putting 
this  September  30,  1786.     Cf.    Sato,  Land  Question,  91,  citing  Journals  of 
Cong.,  iv.,  701-2. 

42 


Evolution  of  the  Ordinance  0/1787.  43 

enactment  of  1784;  and  the  requirement  for  admission  to 
the  Union  was  raised  to  one  thirteenth  of  the  whole  popu 
lation  of  the  original  States  and  consent  of  Congress.  The 
last  item  is  probably  the  most  important  in  showing  the 
political  bias  of  the  committee.1  A  majority  were  northern 
men,  and  they  voiced  the  ideas  of  their  section.  The  draft 
ing  was  done  largely  by  Dane,  assisted  by  Pinckney  on  the 
part  relating  to  temporary  government/2  The  presence  of 
Dane  accounts  for  an  innovation  here.  There  now  appeared 
in  the  report  provisions  touching  the  descent  and  convey 
ance  of  estates.  It  was  provided  that  "  the  real  estates  of 
the  resident  proprietors,  dying  intestate  previous  to  the 
organization  of  the  general  assembly,  shall  descend  to  the 
heir  of  such  proprietors,  male  and  female,  in  equal  parts ; 
.  .  .  provided  however  that  such  proprietors  shall  be  at 
liberty  to  dispose  of  such  lands  by  alienation,  by  bargain 
and  sale,  testamentary  devise,  or  otherwise  as  he  shall  think 
proper."  3  Mr.  Dane's  later  course  makes  it  extremely  proba 
ble  that  he  caused  the  insertion  of  this.  An  important  pro 
vision  securing  the  benefits  of  the  writ  of  Jiabeas  corpus  and 
trial  by  jury  was  also  added.  It  is  found  in  most  of  the 
bills  of  rights  or  constitutions  of  the  States,4  and  was 
thought  to  be  important  and  necessary. 

This  report  of  the  autumn  of  1786  appears  to  be  the 
point  of  departure  in  adding  to  the  plan  of  western  govern 
ment  a  bill  of  rights  and  a  complete  law  regarding  estates. 

(b) —  The  Second  Report. 

A  period  of  seven  months  intervened  before  the  subject 
again  received  the  attention  of  Congress,  and  that  body 
meanwhile  underwent  some  changes  in  its  membership. 

1  Monroe,  writing  to  Jefferson  in  July,  shows  that  the  endeavor  at  that  time 
on  the  part  of  some  was  to  raise  the  requirement  for  admission  :  Bancroft,  Hist, 
of  Formation  of  Const.,  ii.,  371-2. 

-  Dane,  in  the  ninth  volume  of  his  Abridgment  (1830),  Appendix,  74-5  :  King, 
Ohio,  405-9. 

3  Merriam,  Hist,  of  Ordinance,  20. 

4  Cf.  Poore,  Charters,  382-3,  817,  958-9,  1410,  1909,  etc. 


44  Evolution  of  the  Ordinance  of  1787. 

The  committee  of  September,  however,  were  all  on  hand  at 
the  next  session  and  presented  a  report  on  April  26,  1787.' 
At  its  second  reading  on  May  9,  the  committee's  work  on 
requirement  for  admission  was  undone,2  and  the  subject  of 
territorial  representation  was  debated.3  The  next  day  was 
set  for  its  third  reading.  This  plan,4  when  ready  for  its  final 
consideration,  provided  for  the  northwestern  country  a 
complete  political  organization.  During  the  first  stage 
there  should  be  a  governor,  a  secretary  to  keep  the  records 
of  the  executive  and  legislative  departments,  and  furnish 
the  secretary  of  Congress  periodically  with  copies  of  acts 
and  proceedings,  and  a  court  of  three  judges  with  common- 
law  jurisdiction.  The  term  of  the  governor  was  to  be  three 
years,  that  of  the  secretary  four,  while  the  judges  were  to 
hold  office  during  good  behavior.  The  governor  and  judges 
were  also  to  constitute  a  quasi-legislative  body,  to  adopt 
criminal  and  civil  laws  from  the  original  States,  and  publish 
them  in  the  district.  It  was  their  duty  to  report  to  Con 
gress  whatever  laws  they  adopted  ;  and  in  case  that  body  did 
not  disapprove,  the  adopted  laws  should  be  in  force  as  long 
as  that  stage  of  the  temporary  government  lasted.  The 
functions  of  Chief  Executive  were  in  other  respects  those 
usually  belonging  to  that  office.  In  the  second  stage,  which 


1  Winsor,  Narr.  and  Crit.  Hist,  of  Amer.,  vii.,  537  ;  Bancroft,  Hist,  of  U. 
S.  (Fin.  Rev.),  vi.,  281-2,  and  Hist,  of  Formation  of  Const.,  ii.,  104  ;  Force, 
Hist,  of  Ordinance,  in  St.  Clair  Papers,  ii.,  607,  and  Life  of  Cutler,  ii.,  413  ; 
Stone,  Ordinance  of  1787,  in  Penn.  Mag.  of  Hist,  and  Biog.,  xiii.,   317  ;  but 
Dunn,  Indiana,  195,  has  April  23  ;  Sato,  Land  Question,  91  ;   Merriam,  Hist, 
of  Ordinance,  19. 

2  Bancroft,    Hist,  of  U.   S.  (Fin.   Rev.),   282,  and  Hist,  of  Formation   of 
Const.,  ii.,  105,  arguing  from  erasures  on  the  printed  bill  ;  Sato,  Land  Question y 
91.     But  the  copy  in  Force's  Hist,  of  the  Ordinance  has  the  provision  in  it. 

3  Sato,  Land  Question,  91,  citing  Journals  of  Cong.,  iv.,  746. 

4  The  form  of  the  Ordinance  as  it  was  ordered  to  a  third  reading  was  pub 
lished  by  Peter  Force  in  the  National  Intelligencer  of  August  26,  1847,  and  is 
found  also  in  Western  Law  Journal,  v. ,  529  :  Winsor,  Narr.  and  Crit.  Htst. 
of  Amer.,  vii.,  537,  note  2  ;  Sato,  Land  Question,  92  ;  Adams,  Maryland's  In 
fluence,  46,  and  Nation,  xxxiv.,  384.    Also  printed  in  Force's  Hist,  of  Ordinance 
in  St.  Clair  Papers,  ii.,  App.  i.,  and  Life  of  Cutler,  ii.,  App.  D,  413—6  ;  Merri 
am,  Hist,  tf  Ordinance,  21-3  ;  Donaldson,  Public  Domain,  150-2. 


Evolution  of  the  Ordinance  of  1787.  45 

might  take  place  as  soon  as  there  were  "  five  thousand  free 
male  inhabitants  of  full  age  "  within  the  district,  a  house  of 
representatives  was  added.  Its  members  were  to  be  elected 
by  the  people,  one  for  every  500  free  male  inhabitants,  and 
together  with  the  governor  and  a  legislative  council  of  five 
to  be  appointed  by  Congress,  should  constitute  the  general 
assembly.  Representatives  and  their  electors  were  to  have 
a  property  qualification  ;  but  it  was  not  prescribed  for  gov-  j 
ernor  and  secretary.  Members  of  the  house  of  represen-  ^ 
tatives  held  office  two  years ;  those  of  the  council  continued 
during  the  pleasure  of  Congress.  The  governor  had  abso 
lute  veto  on  all  bills  passed  by  the  two  legislative  bodies, 
and  power  to  convene,  prorogue,  and  dissolve  the  assembly 
when  he  found  it  expedient.  Of  general  principles  the  report 
contained  the  rights  of  habeas  corpus  and  of  trial  by  jury,  and 
required  that  the  lands  of  non-residents  should  not  be  taxed 
higher  than  those  of  residents.  Furthermore,  the  inhabi 
tants  would  have  to  pay  a  share  of  the  Federal  debts.  The 
territory  to  be  organized  by  this  proposed  law  is  not  speci 
fied,  but  the  amended  title  shows  that  the  entire  northwest 
ern  country  was  to  form  one_  district.  It  was  first  called 
"  An  ordinance  for  the  government  of  the  western  territory  "  ; 
but  was  amended  to  read,  "  An  ordinance  for  the  govern 
ment  of  the  territory  of  the  United  States,  northwest  of  the 
River  Ohio,  until  the  same  shall  be  divided  into  different 
States."  Afterwards  the  second  clause  was  struck  out.1 

1  Merriam,  Hist,  of  Ordinance,  21. 


VIII. 

THE   OHIO   COMPANY. 

The  third  reading  of  this  ordinance  was  fixed  for  the 
next  day,  May  lo.1  On  that  day  the  order  of  business  was 
called  by  Massachusetts  ;  but  the  question  of  adjournment 
for  a  short  vacation  and  change  of  place  of  meeting  to 
Philadelphia  took  precedence,  and  the  regular  order  was 
postponed.2  On  May  9  the  Ohio  Company  applied  for  a 
purchase  of  lands  in  the  northwestern  territory.  The 
first  movements  in  the  organization  of  this  company  were 
made  early  in  1786,'  and  articles  were  drawn  in  March.  A 
year  later  three  directors  were  chosen,  Gen.  Samuel  A. 
Parsons,  Gen.  Rufus  Putnam,  and  the  Rev.  Manasseh 
Cutler.4  The  first  was  entrusted  with  the  business  of  pur 
chasing  lands  for  the  whole  company,  and  it  was  he  who 
now  appeared  with  a  memorial  for  that  purpose.  It  was 
immediately  referred  to  a  committee  of  five  :  Edward  Car- 
rington,  Rufus  King,  Nathan  Dane,  James  Madison,  and 
Egbert  Benson.5  Some  writers  have  thought  that  there 
existed  a  necessary  connection  between  the  memorial  of 
the  Ohio  Company,  presented  May  9,  and  the  failure  of 
the  ordinance  to  be  acted  on  May  10.  But  there  appears 
no  necessity  for  so  interpreting  the  events.6 

1  Journals  of  Congress,  iv.,  747  ;  Bancroft,  Hist,  of  U.  S.  (Fin.  Rev.),  vi. 
282,  and  Hist,  of  Formation  of  Const. ,  ii.,  105. 

3  Merriam,  Hist,  of  Ordinance,  20. 

3 Life  of  Cutler,  i.,  179  ;  N.  A.  Review,  liii.,  331  (October,  1841);  Ohio 
Arch,  and  Hist.  Quar.,  ii.,  80. 

4  Life  of  Cutler,  i.,  191-2. 

6  Bancroft,  Hist,  of  U.  S.  (Fin.  Rev.),  vi.,  285,  and  Hist,  of  Formation  of 
Const.,  ii.,  no. 

6  Cf.  Bancroft,  Hist,  of  U.  S.  (Fin.  Rev.),  vi.,  282-5,  and  Hist,  of  Forma 
tion  of  Const,,  ii.,  105-10  ;  Dunn,  Indiana,  201-2. 

46 


Evolution  of  the  Ordinance  of  1787.  47 

On  May  1 1  the  ordinance  failed  to  be  called  up,  and 
there  was  no  chance  for  a  consideration  of  it  from  May  12 
to  July  4,  since  Congress  did  not  meet  in  that  interval. 
On  the  anniversary  of  Independence  day  a  quorum  had 
gathered  at  the  hall  in  New  York,  and  the  day  seems  to 
have  been  largely  occupied  with  preliminary  organization. 
At  least  in  the  absence  of  Gen.  Arthur  St.  Clair,  the 
regular  president,  William  Grayson  was  chosen  to  fill  his 
place  for  the  time.1  A  day  of  no  quorum  intervened,  and 
on  July  6  Congress  began  business  again.  The  directors 
of  the  Ohio  Company  were  on  the  lookout  for  this,2  and 
before  legislation  had  been  fairly  commenced,  one  of  the 
directors  was  present  to  press  vigorously  the  suit  of  the 
Ohio  Company  for  the  purchase  of  land.  It  was  Manasseh 
Cutler,  whose  name  has  lately  gained  an  inseparable  con 
nection  with  the  ordinance  enacted  by  Congress  during  the 
next  week.  He  arrived  on  the  evening  of  Thursday,  July 
5,3  and  on  the  following  morning  opened  his  business  with 
Congress.  This  New  England  divine,  without  doubt,  was 
amply  qualified  to  effect  his  purpose.  He  was  a  man  of 
large  experience,  combining  common  sense  with  genial 
manners,  and  well  understanding  how  to  deal  with  men.  In 
his  possession  were  letters  of  introduction  to  many  mem 
bers  of  Congress,  which  he  forthwith  delivered,  and  ere  long 
he  was  on  the  inside  of  the  congressional  circle.  The 
memorial  of  Cutler  was  immediately  referred  to  a  committee 
whose  membership  is  supposed  to  have  been  the  same 
as  in  the  case  of  Putnam's  petition.  This  is  affirmed  *  on  the 


1  Bancroft,  Hist,  of  U.  S.  (Fin.  Rev.),  vi.,  285,  and  Hist,  of  Formation  of 
Const. ,  ii.,  no. 
a  Cutler  to  Sargent,  Boston,  May  30,  1789  :  Life  of  Cutler •,  i.,  196. 

3  Cutler's  Diary,   July  5:  Life  of  Cutler,  i.,   228.     In  both  editions  of  his 
works,  Bancroft  has  Friday,  July  5  :     Hist,  of  U.  S.  (Fin.  Rev.),  vi.,  286,  and 
Hist,  of  Formation  of  Const.,  ii.,  no. 

4  Bancroft,  Hist,  of  U.  S.  (Fin.  Rev.),  vi.,  286,  and  Hist,  of  Formation  of 
Const.,    ii.,   in.     He  states  that  the  report  is  to  be  found  in  vol.  v.  of  the 
Reports  of  Committees  and  in  Old  Papers  of  Congress,  xix.,  27  ;  and  that  the 
report  is  in  the  handwriting  of  Edward  Carrington  and  indorsed  :     "  Report  of 
Committee  on  Memorial  of  S.  H.  Parsons,"  and  that  it  is  further  indorsed  in  the 


48  Evolution  of  the  Ordinance  of  1787. 

ground  that  the  report  is  indorsed  with  the  names  of  the 
same  committee.  But  the  question  arises  how  Mr.  King 
and  Mr.  Madison  could  help  to  make  the  report  while  they 
were  in  Philadelphia.  On  the  day  the  subject  was  referred 
and  also  on  July  10,  the  day  of  the  reading  of  the  report, 
both  took  part  in  the  debates  at  the  Convention  in  Phila 
delphia.1  It  is  not  probable  that  such  an  important  matter 
as  the  large  purchase  contemplated  by  the  Ohio  Company 
would  be  referred  to  a  committee,  nearly  half  of  whom  are 
known  to  have  been  permanently  absent. 

hand  of  Mr.  Thompson,  "  Report  of  Mr.  Carrington,  Mr.  King,  Mr.  Dane,  Mr. 
Madison,  Mr.  Benson.     Read  July  10,  1787.    Order  of  the  day  for  the  eleventh." 
Mr.  Bancroft  thinks  that  Cutler,  in  stating  that  a  committee  was  appointed  July 
6,  was  mistaken.      Cf.  Cutler's  Diary,  July  6  :  Life  of  Cutler,  i.,  230. 
Elliot's  Debates,  v.,  280,  282,  290,  292. 


IX. 

THE   FINAL  COMMITTEE. 

BIBLIOGRAPHICAL  NOTE  FOR  THE  SUBJECT  OF  THE  ORDINANCE  OF  1787. 
— J.  M.  Merriam,  Legislative  Hist,  of  the  Ordinance  of  1787,  23-42  ;  F. 
D.  Stone,  The  Ordinance  of  1787,  in  Penn.  Mag.  of  Hist,  and  Biog.,  xiii., 
309-40  ;  W.  F.  Poole,  Dr.  Cutler  and  the  Ordinance  of  1787,  in  No.  Am.  Rev., 
vol.  122,  pp.  229-65  ;  J.  P.  Dunn,  Jr.,  Indiana  (Commonwealth  Series),  195- 
215  ;  ShosukeSato,  Hist,  of  the  Land  Question  in  the  U.  S.  (J.  H.  U.  Studies, 
Fourth  Series,  vii.-ix.),  93-117  ;  George  Bancroft,  Hist,  of  U.  S.  (Fin.  Rev.), 
vi.,  286-90,  and  Hist,  of  Formation  of  Const.,  ii.,  110-16  ;  Peter  Force,  Ordi 
nance  of  1787  and  its  History,  in  St.  Clair  Papers,  ii.,  610-18,  and  Life  of 
Cutler,  ii.,  417-27  ;  Thomas  Donaldson,  Public  Domain,  152-6  ;  W.  H.  Smith, 
St.  Clair  Papers,  i.,  118-36  ;  Cutler's  Diary,  Life  of  Cutler,  i.,  228-42,  298  ; 
Rufus  King,  Ohio  (Commonwealth  Series),  180-8  ;  B.  A.  Hinsdale,  Old  North 
west,  268-79;  W.  W.  Williams,  Arthur  St.  Clair  and  the  Ordinance  of  1787, 
in  Mag.  West.  Hist.,  i.,  53-61  ;  I.  W.  Andrews,  The_  NorthwestTerritory ,  in  )S 
Mag.  Amer_^Jfist.,  xv.J__i4r^j  Richard  Hildreth,  Hist,  of  U^S., Tin.,  527-tjT 
J.  T.  Curtis,  Hist,  of  Const.,  i.,  301-8,  452,  note  2;  ii.,  344-5;  J.  B. 
McMaster,  Hist,  of  the  People  of  U.  S.,  i.,  507-8  ;  ii.,  478  ;  Thomas  Cooley, 
Michigan  (Commonwealth  Series),  127-32,  138  ;  J.  B.  Dillon,  Hist,  of  Indiana, 
202-3,  539-40,  597-601  ;  |  I.  W.  Andrews.  Beginnings  of  J}ur  Colonial  System,  j 
in  Ohio  Arch,  and  Hist.  Quar.,  i.,  io-37_L  Nathan  Dane  : — (i)  Letter  to  kufus 
Tvmg,  July  16,  1787  :  Bancroft,  Hist,  of  Formation  of  Const.,  ii.,  430-31,  Life 
of  Cutler,  i.,  371-3,  Spencer,  Hist,  of  U.  S.,  ii.,  208-9  >  (2)  Letter  to  Daniel 
Webster,  March  26,  1830,  in  Mass.  Hist.  Soc.  Proc.,  1867-69,  475-80  ;  (3) 
Letter  to  J.  H.  Farnham,  May  12,  1831,  printed  in  New  York  Tribune,  June 
18,  1875  :  quoted  in  part  by  Merriam,  Legislative  Hist,  of  Ordinance  of  1787, 
37;  (4)  "'Abridgment,'"  vii.,  389,  ix.,  App.,  74-76:  King,  Ohio,  405-9; 
Bryant  and  Gay,  Pop.  Hist,  of  U.  S.,  iv.,  95,  no  ;  Penn.  Archives,  xi.,  162-8  ; 
Henry  Wilson,  Rise  and  Fall  of  Slave  Power,  i.,  31-8  ;  J.  W.  Monette,  Hist. 
of  Disc,  and  Settlement  of  Valley  of  Mississippi,  ii.,  237-40  ;  Bulletin  of  U.  S. 
Geol.  Survey,  No.  13,  p.  28  ;  Davidson  and  Stuve,  Hist,  of  Illinois,  207,  2IO- 
12  ;  Staples,  Rhode  Island  in  the  Cont.  Cong.,  571-2  ;  Ford,  Hist,  of  Illinois, 
20  ;  J.  W.  Taylor,  Hist,  of  State  of  Ohio,  First  Period,  1650-1787,  497-515, 
551-7  ;  Land  Laws  of  U.  S.  (Ed.  1828),  356  :  Winsor,  Narr.  and  Crit.  Hist, 
of  Amer.,  vii.,  538,  and  Taylor,  Hist,  of  State  of  Ohio,  551  ;  J.  R.  Albach, 
Annals  of  the  West,  460-72  ;  J.  H.  Perkins,  Annals  of  the  West,  293-8  ;  Life 

4  49 

'rS>v^ 

mi?  ^x  > 


'-, 


vipaitt 


50  Evolution  of  the  Ordinance  of  1787. 

of  Cutler,  i.,  342-71  ;  W.  W.  Williams,  Hist,  of  Negro  Race  in  Amer.,  i., 
416-7  ;  J.  C.  Ridpath,  Pop.  Hist,  of  U.  S.  of  Amer.  (Ed.  1889),  359  ;  John 
Fiske,  Crit.  Period  of  Amer.  Hist.,  199,  202—7  >  Civil  Government  of  U.  S., 
QO,  253>  255  I  W.  F.  Poole,  Gen.  Arthur  St.  Clair,  in  (Chicago)  Dial,  ii.,  252- 
3  ;  and  Gen.  Arthztr  St.  Clair  and  the  Ordinance  of  1787,  \\\Ibid.,  iii.,  14—15  ; 
W.  H.  Smith,  Gen.  Arthur  St.  Clair  and  the  Ordinance  of  1787,  in  Ibid.,  ii., 
294—6  ;  G.  W.  Knight,  Hist,  of  Land  Grants  for  Education  in  N.  W. 
Territory,  in  Papers  of  Amer.  Hist.  Assoc.,  Vol.  i.,  No.  3,  pp.  15,  16  ;  L.  H. 
Porter,  Outlines  of  Const.  Hist,  of  U.  S.,  62-9  ;  N.  W.  Edwards,  Hist,  of 
Illinois,  1778—1833,  and  Life  and  Times  of  JVinian  Edwards,  8— ii  ;  D.  W. 
Howe,  The  Laws  and  Cotirts  of  the  Northwest  and  Indiana  Territories,  in 
Ind.  Hist.  Soc.  Pamphlets,  No.  I,  pp.  3-5  :  C.  M.  Walker,  Hist  of  Athens  Co., 
Ohio,  53-69,  88,  90-2  ;  I.  W.  Andrews,  Manual  of  Const,  of  LT.  ,V.,  296-7  ; 
App.,  xiii.-xix.  ;  Cooper,  Amer.  Politics,  Bk.  iv.,  10-13  ;  H.  B.  Adams,  Mary 
land's  Influence  upon  Land  Cessions  to  U.  S.,  (J.  H.  U.  Studies,  Third  Series), 
i.,  45-54,  and  Nation,  May  4,  1882  ;  Alex.  Johnson,  Ordinance  of  2787,  in 
Lalors  Cyc.  of  Pol,_£fi-  ,  ^ju. ,  30-2  ^  cf.  Ibid.,  ?^gr  919-20  ;  VonYiolst^  Const. 
Hist,  of  U.  S.,  1750-1832,  37,  288  }  S.  O.  Griswold,  in  West.  Reserve  Hist. 
Soc.  Tracts,  ii.,  288-9  J  Timothy  Pitkin,  Pol.  and  Civ.  Hist,  of  U.  S.  of  Amer., 
ii.,  211  ;  William  Goodell,  Slavery  and Anti- Slavery,  83  ;  Landon,  Const.  Hist, 
and  Govt.  of  U.  S.,  99,  185-6  ;  Samuel  Eliot,  Manual  of  U.  S.  Hist.,  275  ; 
Arnold,  Hist,  of  State  of  R.  I.,  ii.,  539  ;  Lucien  Carr,  Missouri  (Common 
wealth  Series),  57  ;  Atwater,  Hist,  of  State  of  Ohio,  126-7  ;  J.  A.  Spencer, 
Hist,  of  U.  S.,  ii.,  202-4,  206-9  ;  Campbell,  Pol.  Hist,  of  Mich.,  206-10  ; 
Farmer,  Hist,  of  Detroit  and  Mich.,  85-6  ;  Library  of  Univ.  Knowledge,  xi., 
39  ;  Ohio  Arch,  and  Hist.  Quar.,  ii.,  No.  i,  pp.  17,  25,  36,  38-49,  54,  81-3, 
92,  153-6,  194-6,  224  ;  Lanman,  Hist,  of  Mich.,  166-7  ;  Carpenter  and  Arthur, 
Hist,  of  Illinois,  109  ;  Mich.  Pioneer  and  Hist.  Coll.,  vii.,  18  ;  xi.,  140-44  ; 
Schuckers,  Life  and  Pub.  Services  of  S.  P.  Chase,  58—60  ;  Moses,  Illinois,  His 
torical  and  Statistical,  i.,  185-91  ;  Alexander  Johnston,  United  Stales,  83-86. 

Bibliographies  are  given  in  Howard,  Local  Const.  Hist,  of  U.  S.,  i.,  142, 
note  3,  and  410,  note  2  ;  Winsor,  Narr.  and  Crit.  Hist,  of  Amer.,  vii.,  537-8. 

(a) — Membership. 

The  energy  of  the  Ohio  Company's  agent  bid  fair  to 
leave  no  opportunity  to  consider  other  matters  until  the 
purchase  was  effected  ;  but  Congress  determined  at  last  to 
finish  the  plan  that  had  so  long  been  preparing  and  had 
been  changed  so  many  times.  July  9,  1787,'  the  subject 
was  finally  referred  to  a  new  committee.  Johnson,  Pinck- 
ney,  and  Henry  were  away,  leaving  only  two  members  of 

1  Bancroft,  Hist,  of  U.  S.  (Fin.  Rev.),  vi.,  286,  and  Hist,  of  Formation  of 
Const. ,  ii.,  Ill,  112.  The  ground  for  supposing  this  is  an  endorsement  on  one 
of  the  papers  in  the  State  department. 


Evolution  of  the  Ordinance  of  1 787.  5 1 

the  last  committee  present.  These  two,  Nathan  Dane  and 
Melancthon  Smith,  were  reappointed  together  with  Edward 
Carrington,  Richard  H.  Lee,  and  John  Kean,  who  had 
served  on  a  similar  committee  just  a  year  before.  The 
choice  of  these  men  seems  not  in  the  least  peculiar.  Mr. 
Kean  would  be  expected  to  be  familiar  with  the  subject  and 
thus  render  substantial  aid.  R.  H.  Lee  had  taken  his  place 
in  Congress  the  very  day  on  which  the  committee  was 
appointed.  He  had  presided  over  that  body  in  1784  and 
1785,'  and  was  therefore  a  prominent  member.  Dane 
regarded  his  advent  with  satisfaction,  and  it  is  not  surpris 
ing  that  Congress  gave  him  committee  work  at  the  first 
opportunity.  Carrington  was  one  of  the  influential  and 
pushing  members  of  this  Congress,  chairman  of  the  com 
mittee  on  purchase  of  land  appointed  in  May,3  and  familiar 
with  western  affairs.  The  further  question  has  arisen,  why 
j  Carrington  was  made  chairman.  There  appears  nothing 
positive.  Possibly  because  he  was  already  chairman  of  the 
committee  on  land  purchase,  or  because  the  southern 
members,  having  a  majority,  wished  to  keep  the  lead  in 
important  matters.  It  is  thought  singular  that  Dane  should 
not  have  filled  this  place,  since  he  had  been  prominent  for 
some  time  in  the  discussions  of  this  subject.  It  might  as 
well  be  asked  why  this  office  was  not  conferred  on  Mr. 
Smith,  who  had  been  serving  on  the  committee  longer  than 
Mr.  Dane.3  In  the  important  committees  the  chairman 
was  quite  generally  an  influential  member,  as  were  those 
who  had  been  at  the  head  of  the  several  committees  on 
western  government,  viz.  :  Thomas  Jefferson,  James 
Monroe,  and  William  Johnson.  Nathan  Dane  was  admira 
bly  fitted  for  his  share  of  the  work.  Hardly  another  would 
have  done  the  work  as  he  did  it.  But  on  account  of  his 
provincialism  he  was  not  one  such  as  might  be  expected  to 
be  made  chairman. 

^Sparks,    Writings  of  Washington,  xii.,  420. 
2  Above,  Sec.  VIII. 

8  Mr.  Smith  was  first  connected  with  a  committee  at  least  as  early  as  August, 
1786  ;  Dane  probably  began  in  September.      Cf.  above,  Sec.  VII. 


52  Evolution  of  the  Ordinance  of  1787. 

Thus  constituted,  the  last  committee  of  the  Old  Congress 
on  the  subject  of  western  territorial  government  made  a 
final  trial  at  the  task. 

(b) —  Work  of  the  Committee, 

Apparently  something  had  been  attempted  before  the 
appointment  of  the  new  committee.1  The  proposal  to  settle 
the  Western  country  caused  a  desire  to  get  a  better  plan  of 
government  than  had  yet  been  devised  for  it,  and  the  lan 
guage  of  Mr.  Dane  at  least  suggests  a  general  demand  on 
the  part  of  the  land  purchasers  for  such  a  thing.2  However 
that  may  be,  new  ideas  came  to  the  front  and  a  new  set  of 
men  was  placed  in  charge.  Their  report  was  made  July  11. 
From  the  ninth  to  the  eleventh  of  that  month,  therefore, 
the  work  was  accomplished.  There  is  record  of  the  amend 
ments  made  when  the  report  was  before  Congress,  so  that 
the  work  done  by  the  committee  is  known.  What  share 
did  each  of  the  committee  have  in  framing  the  report  ?  To 
whom  shall  be  ascribed  the  suggestion  of  the  new  features  ? 
^Vn  answer  must  be  based  either  upon  the  statements  of 
those  who  had  opportunity  to  know,  or  upon  the  evidence 
drawn  from  the  report  itself,  or  upon  both. 
,  There  seems  no  reason  to  doubt  that  the  part  of  drawing 
up  the  report  was  taken  by  Nathan  Dane.3  He  asserted  it 

1  Dane  to  King,  New  York,  July  16,  1787  :    "  We  tried  one  day  to  patch  up 
M.'s  system  of  western   government  ;  started  new   ideas   and   committed   the 
whole  to  Carrington,  Dane,  R.   H.   Lee,   Smith,  and  Kean  "  :    Bancroft,  Hist, 
of  Formation  of  Const '.,  ii.,  431  ;  Life  of  Cutler,  i.,  371  ;  Dunn,  Indiana,  206. 
Life  of  Cutler  has  "  M.  S.  P.  systems  of  W.  government." 

2  "  We  found  ourselves  rather  pressed  ;  the  Ohio  Company  appeared  to  pur 
chase  a  large  tract  of  Federal  lands — about  six  or  seven  million  acres — and  we 
wanted  to  abolish  the  old  system,  and  get  a  better  one  for  the  government  of 
the  country,  and  we  finally  found  it  necessary  to  adopt  the  best  system  we  could 
get":   Dane's  letter  to   King;   cf.  reference  in   previous   note.      The  letter  is 
also  found  in  Spencer,  Hist,    of  U.  S.,  ii.,  208-9  ;    New   York    Tribune,  Feb. 
28,  1855  ;    Dunn,  Indiana,  205-6  ;  quotations  also  in  Sato,  Land  Question,  107, 
and  King,  Ohio,  404-5. 

8 Dane  to  King,  July  16,  1787  :  "When  1  drew  the  ordinance, — which 
passed,  a  few  words  excepted,  as  I  originally  framed  it,"  etc.  Also  statements 
of  Dane  in  Abridgment,  vii.,  389  ;  ix.,  App.,  74-6  :  King,  Ohio,  405-9  ;  and 
a  letter  to  Webster,  March  26,  1830  :  Mass.  Hist.  Soc.  Proc.,  /Sfy-tig,  475-80. 


Evolution  of  the  Ordinance  of  1787.  53 

in  unmistakable  terms  whenever  the  subject  arose,  and  with 
out  evidence  to  the  contrary  he  should  be  credited  with 
this  important  share  of  the  work.  But  Dane  may  have  done 
more.  His  statements  convey  the  impression  that  his  own 
judgment  was  employed  to  a  large  extent  in  selecting  the 
matter  from  existing  materials,  in  shaping  it,  and  in  arrang 
ing  the  general  plan  of  the  report.  Carrington,  we  are  told, 
11  formed  no  part  of  it  "  ;  '  but  he  could  hardly  have  main 
tained  silence  on  so  important  a  subject,  and  in  a  committee 
of  which  he  was  chairman.  R.  H.  Lee  and  Melancthon 
Smith  must  have  had  much  to  do  with  the  decision  as  to 
what  should  go  into  the  report,  since  Dane  states  that  these 
two  agreed  with  him  on  some  principles  after  the  committee 
had  met  several  times.2  And  yet,  notwithstanding  the 
doubt  concerning  the  discussions  which  the  committee  may 
have  had,  the  evidence  at  hand  shows  more  or  less  clearly 
what  they  actually  did.  A  view  may  thus  be  had  of  the 
scribe  as  he  brought  together  into  the  report  the  previous 
results  of  congressional  and  State  action  and  other  ma 
terial. 


(c)_  77^  Report. 

The  result  of  the  committee's  work  is  called  "  AN  ORDI 
NANCE  FOR  THE  GOVERNMENT  OF  THE  UNITED  STATES 
NORTHWEST  OF  THE  RIVER  OHIO,"  and  its  opening  para 
graph  is  as  follows  :  "  Be  it  ordained  by  the  United  States  in 
Congress  assembled,  that  the  said  territory,  for  the  purposes 
of  temporary  government,  be  one  district  ;  subject,  how 
ever,  to  be  divided  into  two  districts,  as  future  circumstances 
may,  in  the  opinion  of  Congress,  make  it  expedient."  The 
motion  of  Mr.  Bland  had  conceived  simply  a  large  tract  of 
^  territory  divided  into  districts  which  should  become  States, 
but  was  indefinite  regarding  the  organization  of  the  whole. 
Likewise  in  the  autumn  of  the  same  year,  the  resolution  of 


1  Dane,  Abridgment,  ix.,  Appendix  :  King,  Ohio,  408. 

2  Dane  to  King,   July  16,  1787  :  "  We  met  several  times  and  at  last  agreed 
on  some  ^rincipjes, ;    at  least  Lee,   Smith,  and  myself"  :    Bancroft,    Hist,  of 
Formation  of  Const.,  ii.,  431. 


54  Evolution  of  the  Ordinance  of  1787. 

October  15  had  declared  "  that  it  will  be  wise  and  neces 
sary  ...  to  erect  a  district  of  the  western  territory 
into  a  distinct  government  .  .  .  "  ;  1  but  it  contemplated 
a  single  State.  Nor  was  there  in  the  law  of  1784  any  more 

^  definite  statement  regarding  the  organization  into  one 
whole  of  the  several  States  outlined  in  it,  to  be  dealt  with 
by  Congress  collectively.  The  ordinance  reported  April 

126,    1787,   was   meant   to   cover  the  whole   district   of   the 

\  Northwest,  as  the  amendments  to  the  title  show.'"  It  ap 
pears  that  when  the  committee  of  which  Johnson  was 
chairman  had  finished  its  work,  there  was  a  well  formed 
idea  that  a  period  of  general  control  by  Congress  would  be 
necessary  before  any  part  could  show  itself  ready  for  even 
a  temporary  organization.  The  unity  of  the  Northwest  for 
,  purposes  of  government  was  now  clearly  provided. 

To  the  committee  at  its  appointment  was  referred  the 
plan  which  had  had  its  third  reading  on  May  9."  It  pro 
vided  a  complete  temporary  government,  including  gover 
nor,  judges,  and  secretary,  in  the  first  stage,  and  a  general 
assembly  composed  of  governor,  council,  and  house,  in  the 
second  stage.  The  ordinance  as  a  whole,  with  unimportant 
changes  in  phraseology,  was  reproduced,  but  with  these 
differences:  (h)  Property  and  residence  qualifications  were 
added  for  the  office  of  governor,  secretary,  and  judges  ;  £2) 
The  purpose  of  the  division  of  the  proposed  district  into 
counties  and  townships  was  set  forth  more  fully,  and  a 
clause  introduced  limiting  the  part  laid  out  to  "  the  parts  of 
the  district  in  which  the  Indian  titles  shall  have  been  ex 
tinguished  "  ;  (3) '.The  clause  granting  a  delegate  with  half 

/  privilege  was  inserted  ;  (4)  A  long  paragraph  was  intro 
duced,  defining  how  members  of  the  proposed  Legislative 
Council  of  five  should  be  appointed.  The  last  was  an  idea 
new  to  the  history  of  congressional  deliberation  upon  the 
unorganized  West,  and  should  therefore  be  examined  more 


1  Journals  of  Congress,  iv.,  296  ;   Merriam,  Hist,  of  Ordinance,  7,  8. 

3  Above,  Sec.  VIII. 

3  Above,  Sects.  VII.  and  VIII. 


Evolution  of  the  Ordinance  of  1787.  55 

carefully.  Apparently  the  only  existing  precedents  1  were 
in  Massachusetts  and  New  Hampshire.  The  constitution 
of  the  latter,  however,  was  adopted  in  1784,  and  differs 
little  from  that  of  Massachusetts  of  four  years  before.2 
This  clause  of  the  report  provided  that  the  members  of 
the  executive  council  should  be  selected  in  this  manner :  at 
a  certain  meeting  of  the  elected  representatives,  there 
should  be  nominated  ten  residents  of  the  district,  each 
qualified  by  a  freehold  of  five  hundred  acres  ;  these  names 
were  to  be  sent  to  Congress,  and  out  of  them  five  council 
lors  should  be  appointed. 

Thus  the  bill  which  in  May  lacked  little  of  becoming  a 
law,  was  changed  and  made  a  part  of  the  present  report. 
This  portion  afforded  a  nucleus  about  which  other  matters 
could  be  collected.  Preceding  this,  and  immediately  fol. 
lowing  the  statement  of  territorial  extent,  was  arranged  a 
long  paragraph,  the  purpose  of  which  was  to  fix  for  the 
^western  settlers  the  law  of  descent  and  conveyance  of 
estates.  It  was  a  large  feature  of  the  report,  and  in  many 
respects  was  quite  new.  In  the  first  attempt  at  a  plan  for 
disposing  of  the  western  lands,  this  subject  was  intro 
duced  ;  3  but  if  the  provision  had  become  a  law,  it  would 
have  been  different  from  that  finally  selected.  Another 
attempt  to  introduce  this  subject  into  legislation  respecting 
the  West,  and  one  in  which,  as  has  been  seen,4  Nathan 


1  Mass.   Const,   of  fj8o,    Pt.   2,   Chap,   i.,   Sec.   i.,   Art.  iv.  :    "And  in  case 
there  shall  not  appear  to  be  the  full  number  of  senators  returned,  elected  by  a 
majority  of  votes  for  any  district,  the  deficiency  shall  be  supplied  in  the  follow 
ing  manner,  viz.  :   The  members  of  the  House  of  Representatives,   and  such 
senators  as  shall  be  declared  elected,  shall  take  the  names  of  such  persons  as 
shall  be  found  to  have  the  highest  number  of  votes  in  such  district,  and  not 
elected,  amounting  to  twice   the  number  of  senators  wanting,   if  there  be  so 
many  voted  for,  and  out  of  these  shall  elect  by  ballot  a  number  of    senators 
sufficient  to  fill  up  the  vacancies  in  such  district  ;  and  in  this  manner  all  such 
vacancies  shall  be  filled  up  in  every  district  of  the  commonwealth  ;  and  in  like 
manner  all  vacancies  in  the  senate,  arising  by  death,  removal  out  of  the  State, 
or  otherwise,  shall  be  supplied  as  soon  as  may  be  after  such  vacancies  shall  hap 
pen  "  :   Poore,  Charters,  962-3  ;  Laws  of  Mass.,  1780-1807,  i.,  28. 

2  Cf.,  New  Hampshire  Constitution  of  1784  :   Poore,  Charters,  1285. 

8  Merriam,  Hist,  of  Ordinance,  13.  4  Above,  Sec.  VII. 


56  Evolution  of  the  Ordinance  of  1787. 

Dane  himself  was  interested,  resulted  in  two  paragraphs  in 
the  ordinance  which  Johnson  reported  in  the  autumn  of 
1786.'  But  they  are  brief,  and  are  mere  suggestions  of 
what  is  fully  treated  in  this  last  report.  For  this  part  Dane 
should  be  given  most  of  the  credit.  There  is  reason  to 
believe  that  he  alone  was  concerned  with  it.  First,  he  was 
a  student  of  Massachusetts  law,  though  certainly  much  less 
familiar  with  it  in  1787  than  after  he  had  completed  the 
ninth  volume  of  his  General  Abridgment  and  Digest  of 
American  Law,  forty-three  years  later.  Secondly,  he  has 
assured  the  world  many  times  that  he  took  this  part  from 
the  Massachusetts  law.2  Lastly,  it  is  possible  to  turn  to  the 
very  statutes  3  from  which,  there  can  be  little  doubt,  the 
report  was  framed.  They  are  found  in  the  Massachusetts 
laws  of  1784."  In  February  of  this  year  a  law  was  passed 


1  Printed  in  Merriam,  Hist,  of  Ordinance,  19—20. 

2  The  words  of  Dane  at  various  places  affirm  this,  so  that  it  would  be  quite 
certain   that  this  was  the  source,   even  though  the  laws  themselves  were  not 
accessible.     In  his  letter  to  Webster  he  states:   "These  titles  occupy  the  first 
part  of  the  Ordinance,  not  a  page,  evidently  selected  from  the  laws  of  Massa 
chusetts,  except  it  omits  the  double  share  of  the  oldest  son  "  :  Mass.  Hist.  Soc. 
Proc.,  i86j-6g,  477.      Further  in  the  same  letter:    "  In  pages  389,  390,  Sec. 
3,   Vol.    7th  (of  Abridgment},    I  mention    the    Ordinance   of   '87   was   framed 
mainly  from  the  laws  of  Massachusetts.     This  appears  on  the  face  of  it  ;  mean 
ing  the  titles  to  estates,"  etc.  :  Ibid.,  479.      In  the  appendix  to  his  Abridgment, 
ix.,  pp.  74-76,  he  also  says  :    "  The  other  description  was  selected  mainly  from 
the  Constitution  and  Laws  of  Massachusetts,  as  any  one  may  see  who  knows 
what  American  law  was  in  '87  ;  as  I.,  Titles  to  property  by  will,  by  deed,  by 
descent,  and  by  delivery,  cited  verbatim  in  the  seventh  volume  of  this  Abridg 
ment,  pages  389,  390":   King,  Ohio,  407.      "On  the  whole,   if   there   be  any 
praise  or  any  blame  in  this  ordinance,  especially  in  the  titles  to  property,  and  in 
the  permanent  parts,   the  most  important  of    it    belongs   to   Massachusetts  "  : 
Ibid.,  409. 

8  Mr.  Merriam  states  that  this  part  was  taken  from  Massachusetts  statutes  of 
1783,  chap.  36  :  Hist,  of  Ordinance,  25.  No  statute  on  this  subject  appears  in 
the  laws  of  1783,  in  the  edition  of  1807.  The  confident  statement  of  W.  H. 
Smith,  editor  of  the  St.  Clair  Papers,  that  "  the  important  clause  on  the  de 
scent  and  conveyance  of  real  property  is  derived  from  the  LI.  article  of  the 
Constitution  of  Georgia  of  1777"  (Chicago  Dial,  ii.,  295),  is  scarcely  worth 
notice.  Cf.  the  provision,  in  Poore,  Charters,  383. 

4  Here  follows  this  part  of  the  committee's  report,  together  with  the  corre 
sponding  passages  in  the  Massachusetts  laws  : 


Evolution  of  the  Ordinance  of  1787. 


57 


*'  prescribing  the  manner  of  devising  lands,  tenements,  and 
hereditaments,"  and  in  March  one  "  directing  the  descent  of 


REPORT    OF   THE    COMMITTEE. 

Be  it  ordained  by  the  authority  afore 
said,  That  the  estates  both  of  resident 
and  non-resident  proprietors  in  the 
said  territory  dying  intestate  shall  de 
scend  to  and  be  distributed  among 
their  children  and  the  descendants  of 
a  deceased  child  in  equal  parts  ;  the 
descendants  of  a  deceased  child  or 
grandchild  to  take  the  share  of  their 
deceased  parent  in  equal  parts  among 
them  ;  and  where  there  shall  be  no 
children  or  descendants,  then  in  equal 
parts  to  the  next  of  kin,  in  equal  de 
gree  ;  and  among  collaterals,  the  chil 
dren  of  a  deceased  brother  or  sister  of 
the  intestate  shall  have  in  equal  parts 
among  them,  their  deceased  parents' 
share  ;  saving  in  all  cases  to  the  widow 
of  the  intestate  her  third  part  of  the 
real  estate  for  life,  and  where  there 
shall  be  no  children  of  the  intestate, 
one-third  part  of  the  personal  estate  ; 
and  this  law  relative  to  descents  and 
dower  shall  remain  in  full  force  until 
altered  by  the  legislature  of  the  dis 
trict.  And  until  the  governor  and 
judges  shall  adopt  laws,  as  hereinafter 
mentioned,  estates  in  the  said  territory 
may  be  devised  and  bequeathed  by 
wills  in  writing,  signed  and  sealed  by 
him  or  her  in  whom  the  estate  may  be 
(being  of  full  age),  and  attested  by 
three  witnesses  ;  and  real  estates  may 
be  conveyed  by  lease  or  release,  or 
bargain  and  sale,  signed,  sealed,  and 
delivered  by  the  person,  being  of  full 
age,  in  whom  the  estate  may  be,  and 
attested  by  two  witnesses. 


LAWS    OF    MASSACHUSETTS. 

"  That  when  any  person  shall  die 
seized  of  lands,  tenements  or  heredita 
ments,  not  by  him  devised,  the  same 
shall  descend  in  equal  shares  to  and 
among  his  children,  and  such  as  shall 
legally  represent  them  (if  any  of  them 
l)e  dead)  .  .  .  ; 

and  in  every  case  where  children  shall 
inherit  by  representation  it  shall  be  in 
equal  shares  ;  and  where  there  are  no 
children  of  the  intestate,  the  inheri 
tance  shall  descend  equally  to  the  next 
of  kin  in  equal  degree,  and  those  who 
represent  them,  computing  by  the  rules 
of  the  civil  law — no  person  to  be  con 
sidered  as  a  legal  representative  of 
collaterals  beyond  the  degrees  of 
brothers'  and  sisters'  children":  Act, 
March  9,  1784,  Laws  of  Mass.,  1780- 
1807,  i.,  124-5. 

"  The  surplusage,  (if  any  there  be) 
shall  by  the  Judge  of  Probate,  be  de 
creed,  one-third  part  to  the  widow  of 
the  deceased  forever,  unless  the  intes 
tate  died  without  issue,  in  which  case 
she  shall  have  one-half  thereof  for 
ever  "  :  Ibid.,  125. 

"  That  every  person  lawfully  seized 
of  any  lands,  tenements,  or  heredita 
ments,  ...  of  the  age  of  twenty- 
one  years  and  upwards,  .  .  .  shall 
have  power  to  give,  dispose  of  and 
devise  the  same  as  well  by  last  will 
and  testament  in  writing  as  other 
ways.  .  .  .  That  all  devises  and 
bequests  of  any  lands  or  tenements 
shall  be  in  writing,  and  signed  by  the 
party  so  devising  the  same  .  .  .  , 
and  shall  be  attested  and  subscribed 
in  the  presence  of  the  said  devisor, 
by  three  or  more  credible  witnesses 
.  .  ."  :  Act,  Feb.  6,  1784,  Laws 
of  Mass. ,  1780-1807,  i.,  109-10. 


58  Evolution  of  the  Ordinance  of  1787. 

intestate  estates."  Considerably  more  than  a  century  before 
this,  however,  the  former  had  been  the  subject  of  provincial 
legislation  in  Massachusetts,1  and  parts  of  the  latter  had 
been  touched  upon  in  1647,  1692,  1710,  1719,  and  1734."  As 
it  it  stood  in  1787,  the  law  of  March  9,  1784,  had  not  been 
changed.  It  provided  for  the  descent  of  property  to  children 
or  their  representatives  in  equal  parts  ;  but  there  was  this 
exception  to  the  equality  of  inheritance  by  the  children  : 
the  eldest  son  received  two  shares.  Even  this  precedence 
did  not  long  remain  a  part  of  the  Massachusetts  law  ;  but  it 
was  there  when  Dane  incorporated  the  general  principles  of 
the  law  into  the  committee's  report,  and  had  he  been  less 
alive  to  the  fact  that  republican  institutions  do  not  favor 
distinctions  between  oldest  and  younger  or  between  males 
and  females,  he  might  have  allowed  this  reminder  of  feudal 
ism  to  be  reported  to  Congress.  Had  he  done  so,  doubtless 
some  one  else  would  have  gained  the  credit  of  striking  'out 
this  inequality.  Dane,  however,  purposely  omitted  this  and 
should  have  the  credit  of  the  intention.3  Thus  did  the  law 
regarding  the  descent  of  property  become  purely  republican. 
By  the  custom  known  as  gavelkind,  which  had  been  pro 
posed  three  years  before  in  this  connection,4  the  sons  in 
herited  alike,  but  the  daughters  were  not  recognized  as 


The  law  of  conveyance  is  not  so  clear  a  case  as  the  law  of  descent.  However 
the  above  excerpt  from  the  Massachusetts  laws  in  force  at  the  time  the  report 
was  made,  on  the  subject  of  conveyance,  seems  to  be  the  nearest  approximation 
to  the  report  among  them.  Some  of  Dane's  references  to  the  matter  almost 
imply  that  a  part  of  this  may  have  come  from  other  laws.  This  Massachusetts 
statute  on  the  law  of  conveyance  of  estates  appears  to  be  remodeled  from  a 
provincial  statute  of  the  year  1692.  Cf.,  Province  Laws,  1692-3,  Chap.  14: 
Acts  and  Resolves  of  the  Prov.,  i.,  43-45  ;  Laws  of  Mass.,  1780-1807, 
ii.,  969-70. 

1  1652  :  Laws  of  Mass.,  1780-1807,  ii.,  962-3. 

2  Ibid.,  ii.,  964-5,  969-70,  993,  1000,  1001,  1009-10  ;    Acts  and  Resolves  of 
the  Prov.,  i.,  43-5,  652  ;  ii.,  738-9. 

3  ' '  These  titles     .     .     .     evidently  selected  from  the  laws  of  Massachusetts, 
except  it  omits  the  double  share  of  the  oldest  son.     ...     I  believe  these 
were  the  first  titles  to  property,  completely  republican,  in  Federal  America  ; 
being  in  no  part  whatever  feudal  or  monarchical  "  :  Letter  to  Webster,  March  26, 
1830,  in  Mass.  Hist.  Soc.  Proc.,  1867-69,  477. 

4  Merriam,  Hist,  of  Ordinance,  13. 


Evolution  of  the  Ordinance  of  1787.  59 

equal  with  the  sons  in  respect  to  rights.1  In  the  report  of 
September,  1786,  the  equality  of  the  sons  and  daughters 
was  made  very  specific :  "  Male  and  female  in  equal 
parts." 

This  part  of  the  report,  therefore,  included  the  law  regard 
ing  title  to  property  by  descent,  by  will,  by  deed,  and  by 
delivery.  An  addition  was  made  providing  that  change  of 
estates  under  this  law  should  be  properly  recorded  within  a 
year  after  the  establishment  of  the  necessary  civil  function 
aries,  and  also  a  final  stipulation  that  the  French  law  in 
force  among  the  Illinois  and  Mississippi  villages,  as  far  as  it 
regulated  the  descent  and  conveyance  of  property,  should 
not  be  supplanted  by  the  law  in  the  proposed  ordinance. 

Nor  was  this  all  the  report.  The  law  governing  property 
and  the  scheme  of  government  were  important.  But  the 
officers  would  be  temporary  ;  and  while  the  part  concerning 
property  was  intended  to  remain  a  permanent  heritage  of 
the  people  with  whom  it  might  gain  a  foothold,  yet  even 
this  does  not  rank  with  those  fundamental  principles  accord 
ing  to  which  the  people  had  come  to  interpret  their  consti 
tutions  and  to  administer  their  laws.  It  might  well  have 
been  seen  that  these  must  be  guaranteed  to  all  new  States, 
if  they  and  the  Confederation  desired  no  uncertainty  in 
their  relations.  The  committee  who  formed  the  report  of 
March  i,  1784,  did  not  fail  to  provide  "  principles  "  for  both 
temporary  and  permanent  governments,  and  however  the 
action  may  have  been  brought  about,  it  is  well  that  the 
present  committee  embodied  in  their  report  a  large  measure 
of  the  results  of  State  and  Federal  experience.  To  the  two 
parts  of  their  report  already  mentioned,  the  committee 
added  five  articles  and  introduced  them  by  the  following 
paragraph  : 

"  And  for  extending  to  all  parties  2  of  the  Confederacy 
the  fundamental  principles  of  civil  and  religious  liberty, 

1  Wharton,  Law  Lexicon  (1883),  360-1  ;  Bouvier,  Law  Dictionary  (1883), 
706. 

9  Merriam,  Hist,  of  Ordinance,  29  ;  Mr.  Force  has  "  parts  "  :  St.  Clair  Papers^ 
ii.,  616,  and  Life  of  Cutler,  ii.,  423. 


60  Evolution  of  the  Ordinance  of  1 787. 

which  form  the  basis  whereon  these  republics,  their  laws 
and  Constitutions  are  erected  ;  to  fix  and  establish  those 
principles  as  the  basis  of  all  laws,  constitutions,  and  gov 
ernments  which  forever  hereafter  shall  be  formed  in  the 
said  territory  CDto  provide  also  for  the  establishment  of 
States  and  permanent  government  therein,  ano^for  their 
admission  to  a  share  in  the  Federal  Councils  on  an  equal 
footing  with  the  original  States,  at  as  early  periods  as  may  be 
consistent  with  the  general  interest :  It  is  hereby  ordained 
and  declared  by  the  authority  aforesaid,  that  the  following 
articles  shall  be  considered  as  articles  of  compact  between 
the  original  States  and  the  people  and  States  in  the  said 
territory  and  forever  remain  unalterable,  unless  by  common 
consent."  The  idea  of  a  compact  between  the  new  States 
and  the  original  thirteen  first  appeared  in  the  report  of 
March  I,  1784 ;  and  from  that,  or  from  the  act  as  it  passed 
April  23,  1784,  the  idea  was  transferred  to  the  present 
report.1 

The  source  of  these  articles  and  the  occasion  of  their  in 
troduction  into  the  Ordinance  of  1787  has  caused  much 
controversy.  A  careful  consideration  of  the  sources  is, 
therefore,  not  in  vain,  if  any  results  can  thereby  be  ob 
tained.  How  the  articles  came  into  the  report  will  be 
noticed  later.2 

The  first  article  is:  "  No  person  demeaning  himself  in  a 
peaceable  and  orderly  manner,  shall  ever  be  molested  on 
account  of  his  mode  of  worship  or  religious  sentiments,  in 
the  said  territory."  After  a  careful  comparison  of  the 
pharaseology  of  the  corresponding  clauses  in  the  constitu 
tions  of  the  different  States,  all  the  evidence  points  to  sec 
tions  two  and  twelve  of  the  Declaration  of  Rights  in  the 
Massachusetts  Constitution  of  1780."  The  second  article 

1  Writers  seem  to  have  traced  the  idea  of  a  compact  no  further  back  than  the 
report  of  Jefferson. 

2  Below,  Sec.  IX.  (d). 

3  Compare  these  excerpts  from  the  constitutions  of  the  States  : 

(a)  Massachusetts,  Const,  of  1780,  Sects.  2  and  3  :  "And  every  denomination 
of  christians  demeaning  themselves  peaceably  and  as  good  subjects  of  the  com- 


Evolution  of  the  Ordinance  of  1787.  61 

summarized  those  principles  of  the  common  law  that  secure 
personal  liberty.  The  first  provision  was  that  inhabitants 
should  always  have  the  benefits  of  the  writ  of  Jiabeas  corpus 
and  trial  by  jury,  and  the  language  is  identical  with  that 
used  in  the  draft  of  the  previous  autumn.1  Proportionate 
representation  in  the  legislature  and  judicial  proceeding 
according  to  the  common  law  were  also  provided.  The 
former  secured  permanently  to  the  territory  what  was  pro 
vided  in  their  temporary  organization  ;  the  latter  was  every 
where  admitted.  It  further  provided :  "  All  persons  shall 
be  bailable  unless  for  capital  offenses,  where  the  proof  shall 
be  evident  or  the  presumption  great ;  all  fines  shall  be 
moderate,  and  no  cruel  or  unusual  punishments  shall  be 
inflicted.''  The  provisions  in  the  various  constitutions  con 
cerning  bail,  fines,  and  punishments  are  very  similar,  and  it 

monwealth,  shall  be  equally  under  the  protection  of  the  laws.  And  no  subject 
shall  be  hurt,  molested,  or  restrained,  in  his  person,  liberty,  or  estate,  for  wor 
shiping  God  in  the  manner  and  season  most  agreeable  to  the  dictates  of  his  own 
conscience,  or  for  his  religious  profession  or  sentiments.  ..."  Poore,  Charters, 
957-3. 

(b)  Virginia,  Bill  of  Rights,  1776,  Sec.  16  :   "And  .    .   .   all  men  are  equally 
entitled  to  the  free  exercise  of  religion  according  to  the  dictates  of  conscience." 
Poore,  Charters,  1909. 

(c)  Pennsylvania,  Const,  of  1776,  Declaration  of  Rights,  Sec.  2:   "Korean 
any  man,  who  acknowledges  the  being  of  a  God,  be  justly  deprived  or  abridged 
of  any  civil  right  as  a  citizen,  on  account  of  his  religious  sentiments  or  peculiar 
mode  of  worship."     Poore,  Charters,  1541. 

(d)  Maryland,  Const,  of  1776,    Declaration  of  Rights,    Sec.  33  :    "  Where 
fore  no  person  ought  by  any  law  to  be  molested  in  his  person  or  estate,  on 
account  of  his  religious  persuasion,  or  profession,  or  for  his  religious  practice." 
Poore,  Charters,  819. 

(e)  Georgia,  Const,  of  1777,  Ivi.  :   "  All  persons  whatever  shall  have  the  free 
exercise  of  their  religion."     Poore,  Charters,  383. 

It  is  thought  unnecessary  to  quote  from  the  New  Hampshire  Constitution  of 
1784,  since  it  is  largely  a  reproduction  of  the  Massachusetts  Constitution  of 
1780.  The  editor  of  the  St.  Clair  Papers  does  not  seem  to  be  aware  of  this 
when  he  observes  that  "The  language  of  the  New  Hampshire  Constitution  of 
1784,  on  the  same  subject,  is  strikingly  like  that  of  the  Ordinance":  Chicago 
Dial,  ii.,  296,  April,  1882.  Certainly  this  is  true  ;  but  Art.  5  of  the  Bill  of 
Rights  in  the  New  Hampshire  Constitution  cf  1784  is  the  same  as  Art.  2  of  the 
Declaration  of  Rights  in  the  Massachusetts  Constitution  of  1780.  Cf.  Poore, 
Charters,  957,  1281. 

1  Cf.  the  provision  :    Merriam,  Hist,  of  Ordinance,  19. 


62  Evolution  of  the  Ordinance  of  1 787. 

cannot  be  said  which  was  the  model,  if  any.  None,  how 
ever,  has  more  claim  than  the  Massachusetts  constitution.1 
Likewise  the  next  provision,  which  was  that  a  man  should  not 
be  deprived  of  liberty  or  property  except  by  the  judgment  ot 
his  peers  or  the  law  of  the  land,  and  that  compensation 
should  be  given  for  property  or  services  required,  is  found  to 
be  similar  in  the  several  constitutions.2  It  looks  back  to  the 


1  Compare  the  following  : 

(a)  Massachusetts,  Const,    of   1780,   Declaration  of   Rights,   Sec.   26:    "No 
magistrate  or  court  of  laws  shall   demand  excessive  bail  or  sureties,  impose 
excessive  fines,  or  inflict  cruel  or  unusual  punishments."     Poore,  Charters,  959. 

(b)  Virginia,  Const,   of  1776,   Bill  of  Rights,   Sec.  9:   "That  excessive  bail 
ought  not  to  be  required,   nor  excessive  fines  imposed,  nor  cruel  or  unusual 
punishments  inflicted."     Poore,  Charters,  1909. 

(c)  Maryland,  Const,   of  1776,   Declaration  of   Rights,   Sec.  22:    "That  ex 
cessive  bail  ought  not  to  be  required,  nor  excessive  fines  imposed,  nor  cruel  or 
unusual  punishments  inflicted,  by  the  courts  of  law."     Poore,  Charters,  818. 

(d)  North  Carolina,  Const,  of  1776,  Declaration  of  Rights,  Sec.  10 :   "That 
excessive  bail  should  not  be  required,  nor  excessive  fines  imposed,  nor  cruel  or 
unusual  punishment  inflicted."     Poore,  Charters,  1409. 

(e)  Georgia,  Const,  of  1777,  lix.  :   "  Excessive  fines  shall  not  be  levied,  nor 
excessive  bail  demanded."     Poore,  Charters,  383. 

(f)  Connecticut,  Const,  of  1776,  Part  4  :   "And  that  no  man's  person  shall  be 
restrained  or  imprisoned  by  any  authority  whatsoever,  before  the  law  hath  sen 
tenced  him  thereunto,  if  he  can  and  will  give  sufficient  Security,  Bail,  or  Main- 
prize,  for  his  Appearance  and  good  Behavior  in  the  meantime,  unless  it  be  for 
Capital  Crimes,  Contempt  in  open  court.   ..."     Poore,  Charters,  258. 

The  last  has  been  cited  as  "  closely  parallel "  to  the  clause  concerning  bail  in 
the  report :  Merriam,  Hist,  of  Ordinance,  30.  But  the  same  can  be  as  truly 
said  for  similar  provisions  in  other  constitutions.  With  regard  to  the  part  of 
Article  II.  requiring  moderate  fines  and  no  unusual  punishments,  Mr.  Merriam 
thinks  that  the  language  was  probably  suggested  by  the  Virginia  Bill  of  Rights 
("b,"  quoted  above)  :  Hist,  of  Ordinance,  30,  31.  Plainly  it  is  difficult  to  do 
more  than  state  a  probability.  Between  the  "  ought  not  to  be  required"  of  the 
constitutions  of  Maryland  and  Virginia,  the  ' '  should  not  be  required  "  of  that 
of  North  Carolina,  and  the  "shall  demand"  and  "shall  not  be  demanded"  in 
the  constitutions  of  Massachusetts  and  Georgia,  only  opinions  can  be  enter 
tained. 

2  The  words  of  the  report  were  :   ' '  No  man  shall  be  deprived  of  his  liberty 
or  property,  but  by  the  judgment  of  his  peers  or  the  law  of  the  land  ;   and 
should  the  public  exigencies  make  it  necessary  for  the  common  preservation,  to 
take  any  one's  property,  or  to  demand  his  particular  service,  full  compensation 
shall  be  made  for  the  same."     Cf.  the  clauses  in  the  constitutions  : 

(a)  Massachusetts,  Const,  of  1780,  Declaration  of  Rights,  Sects.  10  and  12  : 
"And  no  subject  shall  be  arrested,  imprisoned,  despoiled,  or  deprived  of  his 


Evolution  of  the  Ordinance  of  1787.  63 

words  of  the  Magna  Charta :  "  No  freeman  shall  be  taken, 
or  imprisoned,  or  disseized,  or  outlawed,  or  banished,  .  .  . 
unless  by  the  lawful  judgment  of  his  peers,  or  by  the  law  of 
the  land."  A  comparison  shows  that  it  is  found  as  well  in 
the  Massachusetts  constitution  as  in  any  other. 

The  next  part  of  this  same  article  is  the  provision  relating 
to  private  contracts.  Now  for  the  first  time,  interference 

property,  immunities,  or  privileges,  but  out  of  the  protection  of  the  law,  exiled 
or  deprived  of  his  life,  liberty,  or  estate,  but  by  the  judgment  of  his  peers  or  the 
law  of  the  land."  "  But  no  part  of  the  property  of  any  individual  can  with  justice, 
be  taken  from  him,  or  applied  to  public  uses,  without  his  own  consent  or  that  of 
the  representative  body  of  the  people.  .  .  .  And  whenever  the  public  exigencies 
require  that  the  property  of  any  individual  should  be  appropriated  to  public 
uses,  he  shall  receive  a  reasonable  compensation  therefor.  He  is  obliged  .  .  . 
to  give  his  personal  service  or  an  equivalent,  when  necessary."  Poore,  Charters, 
958. 

(b)  Virginia,  Const,  of  1776,  Bill  of  Rights,  Sects.  6  and  8  :    "  That  no  man 
be  deprived  of  his  liberty,  except  by  the  law  of  the  land  or  the  judgment  of  his 
peers."     "  And  that  all  men  having  sufficient  evidence  of  permanent  common 
interest  with,   and  attachment  to,  the  community,  have  the  right  of  suffrage, 
and  cannot  be  taxed  or  deprived  of  their  property  for  public  uses,  without  their 
own  consent  or  that  of  their  representatives  so  elected."     Poore,  Charters,  1909. 

(c)  Pennsylvania,   Const,    of   1776,    Declaration   of   Rights,   Sects.  8  and  9  : 
"  That  every  member  of  society  hath  a  right  to  be  protected  in  the  enjoyment, 
of  life,  liberty,  and  property,  and  therefore  is  bound  to  contribute  his  propor 
tion  towards  the  expense  of  that  protection,  and  yield  his  personal  service  when 
necessary,  or  an  equivalent  thereto :   But  no  part  of  a  man's  property  can  be 
justly  taken  from  him,  or  applied  to  public  uses,  without  his  own  consent,  or 
that  of  his  legal  representatives.      Nor  can  any  man  be  justly  deprived  of  his 
liberty,  except  by  the  laws  of  the  land,  or  the  judgment  of  his  peers."     Poore, 
Charters,  1541-2. 

(d)  Maryland,  Const,   of  1776,   Declaration  of  Rights,   Sec.   21  :    "  That  no 
freeman  ought  to  be  taken,  or  imprisoned,  or  disseized  of  his  freehold,  liberties, 
or  privileges,  or  outlawed  or  exiled,  or  in  any  manner  destroyed,  or  deprived  of 
his  life,  liberty,  or  property,  but  by  the  judgment  of  his  peers,  or  by  the  law  of 
the  land."     Poore,  Charters,  818. 

(e)  North  Carolina,  Const,  of  1776,  Declaration  of  Rights,  Sec.  12  :   "That 
no  freeman  ought  to  be  taken,  imprisoned,  or  disseized  of  his  freehold,  liberties, 
or  privileges,  or  outlawed  or  exiled,  or  in  any  manner  destroyed,  or  deprived  of 
his  life,   liberty,   or  property,   but  by  the  law  of  the  land.      Poore,  Charters, 
1410 

The  constitutions  of  Massachusetts  and  Pennsylvania  seem  to  be  the  only 
ones  which  speak  of  the  government  requiring  "personal  service."  Mr. 
Merriam  is  very  positive  that  ' '  Virginia  and  Massachusetts  together  contributed  " 
these  provisions  :  Hist,  of  Ordinance,  31. 


64  Evolution  of  the  Ordinance  of  1787. 

with  them  is  forbidden  by  law,  except  where  they  are  ille 
gal.  It  has,  therefore,  become  a  matter  of  some  interest  to 
know  who  first  suggested  it.  The  committee  reported: 
"  And  in  the  just  preservation  of  rights  and  property,  it  is 
understood  and  declared,  that  no  law  ought  ever  to  be  made 
or  have  force  in  the  said  territory,  that  shall  in  any  manner 
whatever,  interfere  with  or  affect  private  contracts  or  en 
gagements,  bona  fide,  and  without  fraud,  previously  formed.*' 
Dane  claimed  to  have  originated  this,1  and  doubtless  he  did 
frame  it  in  his  own  words  and  put  it  in  its  place  in  the  report. 
It  could  not  be  found  elsewhere.  But  he  may  not  have 
been  the  first  to  speak  of  it.  The  evidence  deduced  by  Dr. 
Bancroft  to  show  that  R.  H.  Lee  had  thought  of  this  earlier 
in  the  same  year,  prevents  the  view  that  Mr.  Dane  claimed 
originality  as  to  idea.2  The  purpose  of  the  measure  was 
understood  to  refer  to  the  abuses  of  paper  money.3 

There  were  two  subjects  in  the  third  article  :  encourage 
ment  to  morality  and  education,  and  preservation  of  good 
faith  in  dealing  with  Indians.  The  part  referring  to  the 
former  was  brief,  but  it  has  attracted  more  attention,  per 
haps,  than  any  other  part  of  the  committee's  report.  "  In 
stitutions  for  the  promotion  of  religion,  morality,  schools 
and  the  means  of  education  shall  forever  be  encouraged, 
and  all  persons,  while  young,  shall  be  taught  some  useful 
occupation."  The  authorship  of  this  provision,  together 
with  that  of  the  article  on  slavery,  which  was  added  later, 
has  been  the  centre  of  interest  in  the  discussion  of  the 

1  Abridgment,  ix.,  Appendix:  "As  to  matter,  he  [Dane]  furnished  the  pro 
vision  respecting  impairing  contracts,  and  the  Indian  security,  and  some  other 
smaller  matters":  King,  Ohio,  409.  Cf.  Dane  to  Webster,  March  26,  1830: 
' '  I  have  never  claimed  originality  except  in  regard  to  the  clause  against  impair 
ing  contracts,  and  perhaps  the  Indian  article  ":  Mass.  Hist.  Soc.  Proc.,  1867— 6q, 
479- 

'*  Dr.  Bancroft,  Hist,  of  LI.  S.  (Fin.  Rev.),  vi.,  288,  and  Hist,  of  Formation 
of  Const.,  ii.,  113,  citing  Lee  to  George  Mason,  May  15,  1787,  Life  of  R,  H. 
Lee,  ii.,  71-73  ;  and  also  Sparks,  Letters  to  Washington,  iv.,  174.  Cf. 
Stone,  Ordinance  of  1787,  in  Penn.  Mag.  of  Hist,  and  Biog.,  xiii.,  337-8  ; 
Merriam,  Hist,  of  Ordinance,  31-2. 

3  Otto  to  Mortmain,  July  20,  1787  :  Bancroft,  Hist,  of  Formation  of  Const., 
ii-,  432. 


Evolution  of  the  Ordinance  of  1787.  65 

Ordinance  of  1787.  An  analysis  shows  that  the  occasion 
of  its  introduction  into  the  report  is  the  doubtful  part  of 
the  matter,  rather  than  who  put  it  in  or  framed  it.  For 
there  is  nothing  to  show  that  Mr.  Dane  was  not  its  author, 
and  there  is  much  reason  to  believe  that  he  was.  There  is 
enough  in  the  constitution  of  Massachusetts  to  have  sug 
gested  the  form  of  the  provision.1  Mr.  Dane  did  not  claim 
originality  in  regard  to  this,  but  what  he  did  say  has  not 
been  understood  on  account  of  his  obscure  style.  His  lan- 
"guage,  ipdeed,  has  misled  some  of  the  best  writers  on  the 
.subject.2  He  declared  that  he  took  the  provision  from  the 

1  In  the  Declaration   of   Rights,    Sec.    3,    there  occurs  the  following:    "As 
the  happiness  of  a  people  and  the  good  order  and  preservation  of  civil  govern 
ment  essentially  depend  iipon  piety,  religion,  and  morality,  and  as  these  cannot 
be  generally  diffused  through  a  community  but  by  the  institution  of  the  public 
worship  of  God,  and  of  public  instructions  in  piety,   religion,  and  morality : 
therefore,  to  promote  their  happiness  and  to  secure  the  good  order  and  preser 
vation  of  this  government,"  etc.  :   Poore,    Charters,  957.     And  Chapter  v.  of 
the  Constitution,  entitled  "  Encouragement  to  Literature,"  etc.,  is  as  follows  : 
"  Wisdom  and  knowledge,  as  well  as  virtue,  diffused  generally  among  the  body 
of  the  people,  being  necessary  for  the  preservation  of  their  rights  and  liberties  ; 
and  as  these  depend  on  spreading  the  opportunities  and  advantages  of  education 
in  the  various  parts  of  the  country,  and  among  the  different  orders  of  the  peo 
ple,  it  shall  be  the  duty  of  legislatures  and  magistrates  in  all  future  periods  of 
this  commonweath,  to  cherish  the  interests  of  literature  and  the  sciences,  and 
all  seminaries  of  them,"  etc. 

2  One  of  Mr.  Dane's  statements  is  :    "I  have  never  claimed  originality,  except 
in  regard  to  the   clause  against  impairing  contracts,  and  perhaps  the  Indian 
article,  part  of  the  third  article,  including,  also,  religion,  morality,  knowledge, 
school:;,  etc."  :   Letter  to  Webster,  Mass.  Hist.    Soc.   Proc.,   1867-69,  479.     By 
this  he  must  mean,  "  and  perhaps  the  Indian  article,  a  part  of  the  third  article, 
which  includes,  also,  religion,  morality,"  etc.     Again,  he  states  in  his  Abridg 
ment,  ix. ,  Appendix  :    ' '  The  other  description  was  selected  mainly  from  the 
constitution  and  laws  of  Massachusetts     .      .     .     as  L,  Titles  to  property,"  etc. 
"  II.,   All  the  fundamental,  perpetual  articles  of  compact  (except  as  below) — 1st, 
securing  forever  religious  liberty  ;  2d,  the  essential  parts  of  a  bill  of  rights  de 
claring  that  '  religion,  morality,  and  knowledge,  being  necessary  to  good  govern 
ment  and  the  happiness  of  mankind,  schools  and  the  means  of  education  shall 
forever  be  encouraged. '     These  selections  from  the  code  of  Massachusetts,"  etc.  : 
King,    Ohio,   407.       Mr.   Dane  evidently    meant  to  say  that    he  selected   this 
provision  concerning  morality  and  education  from  the  Massachusetts  law  ;  and 
there  is  no  reason  to  interpret  it  otherwise.     Dr.  Poole  and  Mr.  Stone  have 
both  misunderstood  this  :  Dr.  Cutler  and  the  Ordinance  of  1787,  in  N.  A.  Rev., 
vol.  cxxii.,  pp.  259—60  ;  Penn.  Mag.  of  Hist,  and  Biog. ,  xiii.,  338. 

5 


66  Evolution  of  the  Ordinance  of  1787. 

Massachusetts  code.  A  possible  motive  for  introducing 
this  provision  will  be  considered  elsewhere. 

The  latter  part  of  the  third  article,  which  secured  to  the 
Indians  fair  treatment,  property  rights,  liberty,  and  legisla 
tion  in  their  behalf,  Dane  felt  was  his  own.  Not  that  the 
idea  was  new,  perhaps,  for  it  was  not.  Much  had  been  said 
upon  the  subject  since  Roger  Williams  championed  the 
cause  of  the  Indians.  But  Dane  thought  that  he  had  con 
tributed  this  much  without  copying  it  from  any  particular 
place.1 

Article  iv.  embodied  all  but  one  of  the  seven  principles 
in  the  law  of  1784,  together  with  the  motion  of  Grayson 
regarding  the  navigation  of  the  tributaries  of  the  Mississippi 
and  St.  Lawrence.2  No  material  change  was  made  in  these, 
but  a  clause  was  added  to  the  effect  that  the  taxes  appor 
tioned  to  a  new  State  by  Congress  should  be  levied  by  its 
legislature.  The  sixth  principle  of  the  law  of  1784  was 
reserved  for  Article  v.  The  words  of  the  provision  for  free 
navigation  were  not  changed.3 

The  motion  of  Grayson  to  divide  the  Northwest  into  five 
States,  by  drawing  a  parallel  at  the  southern  point  of  Lake 
Michigan  and  allowing  two  States  above  and  three  below,4 
was  the  basis  for  the  division  outlined  in  the  fifth  article. 
It  provided  for  a  division  into  "  not  less  than  three  nor 
more  than  five  states,"  which  had  been  agreed  upon  during 
the  previous  summer.5  The  meridian  of  the  mouth  of  the 
Wabash,  however,  was  changed  to  the  meridian  of  "  Post 
Vincent's,"  thus  allowing  the  Wabash  to  be  a  boundary  to 
some  extent.  With  the  meridian  at  the  mouth  of  the  Great 
Miami  there  would  thus  be  formed  three  States.  It  was 


1  For  other  views  and  general  reference  to  the  subject,  see  St.  Clair  Papers, 
i.,   131  ;  Stone,  Penn.  Mag.  of  Hist,  and  Biog.,  xiii.,  337  ;  Merriam,  Hist,  of 
Ordinance,  33  ;  Dunn,  Indiana,  207-8  ;  King,  Ohio,  187-8  ;  Williams,  Arthur 
St.  Clair  and  the  Ordinance  of  1787,  in  Mag.    West.  Hist.,  i.,  6l. 

2  Above,  Sec.  VI. 

8  Merriam,  Hist,  of  Ordinance,  34,  citing  Journals  of  Congress,  iv.,  637-8. 
4  Above,  Sec.  VI. 
8  Above,  Sec.  VI. 


Evolution  of  the  Ordinance  of  1 787.  67 

further  provided  that  if  Congress  found  it  expedient,  one  or 
two  States  might  be  formed  north  of  the  parallel  at  the 
southern  extreme  of  Lake  Michigan.  These  boundaries 
were  to  become  "  fixed  and  established  "  as  soon  as  Virginia 
should  "  alter  her  act  of  cession  and  authorize  the  same." 
In  this  article,  also,  a  final  conclusion  was  reached  with 
regard  to  requirement  for  admission.  The  colony  of  sol 
diers  which  Pickering's  draft  conceived  was  to  arrive  at 
statehood  at  one  bound  and  gain  forthwith  admission  to 
Congress  by  its  delegates.2  Eland's  ordinance  would  have 
turned  such  aspirations  to  despair  by  causing  the  territory 
to  wait  until  it  should  have  20,000  male  inhabitants.3  The 
provision  in  the  draft  reported  by  Jefferson,  that  the  State 
to  be  admitted  must  have  a  population  equal  to  that  of  the 
least  numerous  of  the  thirteen  original  States,  remained  the 
requirement  until  the  changes  in  the  committee  during 
the  summer  and  autumn  of  1786.  After  the  appointment 
of  new  members  at  that  time,  the  prejudice  against  the 
admission  of  new  States  found  expression  in  a  higher 
requirement :  that  a  new  State  must  have  a  population 
equal  to  one  thirteenth  of  the  number  in  the  Confederacy. 
Better  counsels,  or  rather  the  vote  of  Congress,  prevailed, 
and  this  requirement  was  struck  out.  Now  it  was  provided 
that  "  whenever  any  of  the  said  States  shall  have  60,000 
free  inhabitants  therein,  such  State  shall  be  admitted,  by  its 
delegates,  into  the  Congress  of  the  United  States,  on  an 
equal  footing  with  the  original  States  in  all  respects  what 
ever,  and  shall  be  at  liberty  to  form  a  permanent  constitution 
and  State  government." 

The  sixth  principle  completed  the  article.  Many  times 
since  the  resolution  of  Congress  of  October  10,  1780,  had 
declared  that  ceded  territory  should  be  "  formed  into  dis 
tinct  republican  States,"  had  the  republican  character  of 
future  States  been  asserted.  The  following  paragraph,  de- 


1  Act  of  Virginia  ratifying  the  change,  Dec.  30,  1788  :   Hening,  Statutes,  xii., 
780-1. 

2  Above,  Sec.  II. 

3  Above,  Sec.  II. 


68  Evolution  of  tJic  Ordinance  of  1787. 

claring  this  and  modifying  the  requirement  for  admission  l 
as  a  hard  and  fast  rule,  completed  the  report  of  the  commit 
tee  :  "  Provided,  the  constitution  and  government  so  to  be 
formed  shall  be  republican,  and  in  conformity  to  the  princi 
ples  stated  in  these  articles,  and  so  far  as  it  can  be  consistent 
with  the  general  interest  of  the  confederacy,  such  admission 
shall  be  allowed  at  an  earlier  period,  and  when  there  may 
be  a  less  number  of  free  inhabitants  in  the  State  than  60,000." 
The  idea  of  new  colonies  to  the  westward  of  the  old  thir 
teen  existed  long  before  the  colonies  severed  the  tie  which 
bound  them  to  the  mother  country ;  but  it  is  surprising 
that  less  than  four  months  after  the  famous  Fourth  of  July 
on  which  that  separation  was  proclaimed  the  Maryland  con 
vention  made  the  declaration  that  such  lands  as  were 
conquered  by  the  united  strength  of  the  colonies  "  ought  to 
be  considered  as  a  common  stock  to  be  parcelled  out  at 
proper  times  into  convenient,  free,  and  independent  gov 
ernments."  ''  This  was  before  there  was  any  union  into 
which  new  States  might  be  received.  But  as  soon  as  there 
was  developed  a  pretty  definite  idea  of  a  union  of  the  colo 
nies  under  one  government,  it  was  declared  that  these  new 
organizations  which  might  be  formed  from  the  unsettled 
West  should  be  republican,  and  that  they  should  come  into 
the  league  of  States  to  enjoy  the  common  benefits  and  bear 
the  common  burdens.  In  the  final  article  of  the  report 
these  ideas  were  embodied. 

(d) — The  Influence  of  Manasseh  Cutler. 

Thus  was  the  report  of  the  committee  finished.  An  at 
tempt  has  been  made  to  discover,  as  far  as  the  evidence 
allows,  whence  it  was  drawn.  It  has  appeared  that  the  com 
mittee  or  their  draughtsman  had  at  hand  the  previous  ordi- 


1  Even  with  a  requirement  for  60,000  population  the  Northeast  was  not 
satisfied.  Dane  said  in  his  letter  to  King  that  he  thought  the  requirement 
too  small.  He  consoled  himself  with  the  thought  that  perhaps  the  new  State 
first  admitted  would  adopt  eastern  politics. 

3  Resolve  of  the  Maryland  Convention,  Oct.  30,  1776  :  Amer.  Archives,  Fifth 
Series,  iii.,  134. 


Evolution  of  tJie  Ordinance  of  1 787.  69 

nances,  the  motions  of  Grayson,  the  Code  of  Massachusetts, 
and  perhaps  the  constitutions  or  laws  of  other  States.  Mo 
tives  of  action  have  not  been  discovered.  It  has  not  been 
shown  why  particular  provisions  should  have  been  selected 
rather  than  others,  or  selected  at  all,  unless  it  has  appeared 
that  Mr.  Dane  himself  had  a  choice.  One  influence  brought 
to  bear  upon  the  committee  needs  to  be  considered  in  this 
connection.  The  agent  of  the  Ohio  Company  had  not  yet 
completed  his  purchase,  and  was  present  with  Congress 
during  a  portion  of  the  time  probably  occupied  by  the  com 
mittee  in  preparing  their  report.  What  had  Manasseh 
Cutler  been  doing  on  that  Monday  and  Tuesday,  July  9 
and  10?  During  the  forenoon  of  the  preceding  Friday 
Dr.  Cutler  delivered  his  letters  to  Congressmen,  prepared  his 
petition  for  land  purchase,  and  submitted  it.1  He  took  din 
ner  with  Mr.  Dane,  who  was  a  member  of  the  committee  on 
purchase  of  land  and  afterwards  of  the  one  on  the  ordi 
nance  ;  but  it  will  be  noticed  that  Mr.  Dane  was  not  the 
only  one  with  whom  he  dined.  Dane  and  the  Comptroller 
of  the  Board  of  Treasury  lived  together,  Dr.  Cutler  tells 
us  in  his  Journal,  and  owing  to  the  fact  that  Cutler  had  no 
great  reverence  for  Dane  as  a  man,  it  is  likely  that  he  dined 
quite  as  much  with  the  Comptroller  of  the  Board  as  with 
Dane.  Cutler  spent  the  evening  with  several  members  of 
Congress,  and  on  Saturday2  met  Thomas  Hutchins,  Geog 
rapher  to  the  United  States,  and  consulted  him  on  location. 
No  one  has  yet  ascertained  that  Cutler  came  to  Congress 
with  a  single  thought  as  to  the  western  government  ;  but  if 
he  did  have  such  a  thought,  or  was  in  any  wise  especially  in 
terested  in  that  subject,  Monday  was  the  time  he  would  have 
shown  it.  Early  that  morning  he  sought  Mr.  Hutchins  and 
obtained  full  information  of  the  western  country  and  ad 
vice  to  locate  on  the  Muskingum.  He  left  Mr.  Hutchins 
only  long  enough  to  wait  on  the  land  committee  before 
Congress  opened,  and  then  returned  to  spend  the  remainder 
of  the  forenoon  with  the  man  who  could  give  him  the  best 

1  Cutler's  Diary,  July  6  :  Life  of  Cutler,  i.,  230. 
9  Cutler's  Diary,  July  7  .  Life  of  Cutler,  i.,  230. 


70  Evolution  of  the  Ordinance  of  1787. 

information  regarding  the  West.1  After  dining  with  some 
clergymen,  the  Doctor  reluctantly  left  this  sociable  company 
to  attend  the  land  committee  and  settle  terms  of  contract, 
but  the  parties  "  were  so  wide  apart  "  that  there  appeared 
"little  prospect  of  closing  a  contract. " !  After  this  the  ob 
servant  scientist  took  a  lively  interest  in  the  curious  things 
to  be  seen  in  the  halls  where  the  Federal  legislators  met. 
Members  of  the  committee  showed  him  about  the  building, 
and  he  has  left  in  his  Journal 3  a  thorough  description  of 
what  was  then  the  council-chamber  of  the  Confederacy. 
After  again  consulting  Hutchins  he  spent  the  evening  with 
Dr.  Holton  and  other  members  of  Congress  in  the  same 
quarter  of  the  city.  Thus  ended  the  day  on  which  the 
ordinance  was  referred  to  the  committee,  and  as  far  as  it 
appears,  Dr.  Cutler  may  not  have  been  aware  that  the  sub 
ject  had  been  revived.  The  next  morning  he  again  con 
ferred  with  the  committee  on  land  and  visited  Columbia 
College.4  That  day  he  dined  with  the  president  and  secre 
tary  of  the  Board  of  Treasury.  He  does  not  state  what 
hour  this  was,  but  he  tells  us  that  Duer,  the  secretary,  lived 
in  the  style  of  a  nobleman,5  and  doubtless  it  was  a  fashion 
able  hour.  The  next  entry  in  his  Journal  is  the  important 
one  as  regards  the  report  of  the  committee  given  the  follow 
ing  day.  He  writes :  "  As  Congress  was  now  engaged  in 
settling  the  form  of  government  for  the  Federal  Territory, 
for  which  a  bill  had  been  prepared,  and  a  copy  sent  to  me 
with  leave  to  make  remarks  and  propose  amendments,  and 
which  I  had  taken  the  liberty  to  remark  upon  and  to  pro 
pose  several  amendments,  I  thought  this  the  most  favorable 
opportunity  to  go  on  to  Philadelphia.  Accordingly  after  I 
had  returned  the  bill  with  my  observations,  I  set  out  at  seven 
o'clock  and  crossed  North  River  to  Paulus  Hook."6  When 


1  Cutler's  Diary,  July  9  :  Life  of  Cutler,  i.,  236. 

2  Cutler's  Diary,  July  9  :  Life  of  Cutler,  i.,  237. 

::  Cutler's  Diary,  July  9  :  Life  of  Cutler,  i.,  237-8. 
4  Cutler's  Diary,  July  10  \<Life  of  Cutler,  i.,  239. 
'Cutler's  Diary,  July  10  :  Life  of  Cutler,  i.,  240-1. 
6  Cutler's  Diary,  July  TO  :  Life  of  Ciitler,  i.,  242. 


Evolution  of  the  Ordinance  of  1/87.  71 

Cutler  returned  over  a  week  later  he  found  in  the  ordinance, 
passed  in  the  meantime,  the  amendments  he  had  suggested, 
except  one.1  What  they  were  is  the  problem. 

What  ordinance  was  handed  to  Dr.  Cutler?  Was  it  the 
one  prepared  in  the  spring  relating  to  temporary  govern 
ment,  or  was  it  one  drawn  by  the  committee  of  July  9? 
The  expression  of  Dr.  Cutler  on  seeing  the  ordinance  after  it 
had  passed  was,  "It  is  in  a  degree  new-modeled."2  With 
nothing  to  the  contrary,  this  would  be  strong  ground  for 
thinking  that  when  he  saw  the  ordinance  on  July  10,  the 
committee  having  it  in  charge  had  not  prepared  their  report.9 
On  the  other  hand,  the  committee  had  been  appointed  Mon 
day,  and  it  would  be  strange  if  they  should  let  the  rest  of 
that  day  and  nearly  all  of  Tuesday  pass  before  beginning 
their  work.  The  impression  left  by  Dr.  Cutler's  words  is 
that  it  was  just  before  he  left  the  city  that  he  returned  the 
ordinance,  or  "bill,"  as  he  calls  it.  "Accordingly,  after  I 
had  returned  the  bill  with  my  observations,  I  set  out  at  seven 
o'clock."  At  least  the  day  was  far  gone.  It  seems  rather 
more  probable,  therefore,  that  some  work  had  been  done  on 
the  report.  The  land  purchase  was  an  important  matter,  and 
Dane  implies  in  his  letter  to  Rufus  King,  that  it  had  a  ma 
terial  effect  upon  the  quality  of  the  committee's  report.4  If 
they  had  anything  better  than  the  draft  of  the  spring,  it  is 
likely  that  they  submitted  it  to  Cutler.  If  they  had  a  draft 
in  any  measure  prepared,  what  did  it  contain  ?  In  all  prob 
ability  it  was  made  up  of  those  parts  which  it  would  have 
received  without  any  outside  influence.  Dane  would  do  on 
one  committee  what  he  did  on  another,  perhaps ;  and  the 
law  governing  the  descent  and  conveyance  of  property 
would  probably  have  become  a  part  of  the  report  without 
Dr.  Cutler's  assistance.  Whatever  was  brought  together 
from  the  old  ordinances  and  from  separate  enactments  of 
Congress,  might  have  been  expected  to  appear  in  the  report. 


1  Cutler's  Diary,  July  19  :  Life  of  Cutler,  i.,  293. 

2  Cutler's  Diary,  July  19  :  Life  of  Cutler,  i.,  293. 

3  Cf.  Merriam,  Hist,  of  Ordinance,  40. 

4  Bancroft,  Hist,  of  Formation  of  Const.,  ii.,  431. 


72  Evolution  of  the  Ordinance  of  1787. 

This  would  embrace  the  fourth  and  fifth  articles.  Whatever 
was  due  to  Cutler  seems  likely  to  be  contained  in  the  first 
three  articles.  He  can  hardly  have  suggested  all  of  these. 
No  doubt  parts  of  them  were  already  in  the  report,  and  we 
may  conclude  from  the  fact  that  it  was  "  new-modeled  " 
when  Cutler  afterwards  saw  it,  that  it  was  presented  to  him 
in  a  different  form.  Indeed,  in  this  connection  there  would 
be  no  improbability  in  supposing  a  suggestion  by  Dr.  Cutler 
as  to  an  arrangement  of  the  parts.  When  he  saw  the  ordi 
nance  on  his  return,  Cutler  wrote  also  :  "  The  amendments  I 
proposed  have  all  been  made  except  one,  and  that  is  better 
qualified."  Does  not  his  language  imply  several  amend 
ments  or  changes?  Would  he  have  written  that  the  amend 
ments  had  "all"  been  made  except  one,  if  there  had  been 
but  two  or  three  ? 

Among  the  files  of  Ohio  documents  that  were  in  the  Cut 
ler  family,  was  the  Ordinance  of  1787  on  a  printed  sheet, 
and  "  on  the  margin  was  written  that  Mr.  Dane  requested 
Dr.  Cutler  to  suggest  such  provisions  as  he  deemed  advis 
able,  and  that  at  Dr.  Cutler's  instance  was  inserted  what 
relates  to  religion,  education,  and  slavery."  *  As  far  as  there 
is  nothing  to  the  contrary  this  will  be  allowed,  and  the  fol 
lowing  would  seem  to  have  been  the  proceeding  : — Dane 
having  been  intrusted  by  the  committee  with  the  work  of 
drawing  up  the  ordinance,  submitted  to  Cutler  what  he  had 
prepared.  With  his  suggestions  Dane  returned  to  his  task, 
remodeled  the  draft,  and  made  use  of  all  the  suggestions 
except  one,  or  possibly  two.  One  item  omitted  is  men 
tioned  in  Dr.  Cutler's  Journal,  and  had  reference  to  taxation. 


1  Cutler's  Diary,  July  19  :  Life  of  Cutler,  i.,  293. 

a  Dr.  Poole  in  the  No.  Am.  Rev.,  vol.  122,  p.  261,  citing  a  letter  of  Dr. 
Joseph  Torrey  to  Judge  Ephraim  Cutler,  Jan.  30,  1847,  which  relates  that  he 
saw  this  document.  Cf.  Life  of  Cutler,  i.,  343.  Because  of  the  fact  that  the 
Ohio  Company  and  their  agent  were  all  the  while  asking  for  a  private  con 
tract,  and  since  this  purchase,  when  finally  made,  was  really  a  private  contract 
on  a  large  scale,  some  have  drawn  the  inference  that  it  was  at  Dr.  Cutler's 
instance  that  Dane  inserted  the  provision  with  regard  to  the  obligation  of 
contracts  :  W.  P.  Cutler,  Private  Contract  Provision  in  Ordinance  of 1787,  in 
Mag.  Amer.  Hist.,  xiii.,  483-6. 


Evolution  of  the  Ordinance  of  1787.  73 

The  other  is  the  anti-slavery  provision.1  To  what  extent 
the  arrangement  of  the  report  was  due  to  Cutler  does  not 
appear,  nor  will  it  probably  be  known  how  far  the  embodi 
ment  of  the  principles  from  bills  of  rights  was  occasioned 
by  his  suggestions. 

1  Below,  Sec.  X.  (b). 


X. 

THE   REPORT   BEFORE   CONGRESS. 

(a) — The  Minor  Amendments. 

On  Wednesday,  July  n,  the  report  of  the  committee  was 
submitted  to  Congress.  Thursday,  at  its  second  reading,  it 
was  variously  altered.  In  the  case  of  minor  changes  in 
wording,  it  is  not  known  who  moved  the  amendments ;  but 
the  different  handwritings  show  who  were  some  of  those 
most  interested  in  the  ordinance.  Two  additions  were  made 
to  the  part  which  regulated  descent  and  conveyance  of 
property,  and  both  are  in  the  handwriting  of  Grayson,  the 
acting  president  of  Congress.1  The  first  added  after  the 
clause  providing  that  "  among  collaterals  the  children  of  a 
deceased  brother  or  sister  of  the  intestate  shall  have  in 
equal  parts  among  them  their  deceased  parents'  share,"  "and 
there  shall  in  no  case  be  a  distinction  between  kindred  of  the 
whole  and  half  blood."  The  other  touched  the  clause  refer- 
ring  to  the  French  settlers.  Instead  of  reading,  "  saving, 
however,  to  the  inhabitants  of  Kaskaskia  and  Post  Vincent, 
their  laws  and  customs  now  in  force  among  them,  relative 
to  the  descent  and  conveyance  of  property,"  it  was  made  to 
read,  "  saving  however  to  the  French  and  Canadian  inhabi 
tants  and  other  settlers  of  the  Kaskaskias,  St.  Vincents,  and  the 
neighboring  villages  who  have  heretofore  professed  themselves 
citizens  of  Virginia,  their  laws  and  customs  now  in  force  among 
them,"  etc.  The  clause,  "  where  there  shall  be  no  children 
of  the  intestate,"  also  was  struck  out.  An  important  change 

1  Merriam,  Hist,  of  Ordinance,  25-6  ;  Force,  Hist,  of  Ordinance  ;  St.  Clair 
Papers*  ii.,  613,  and  Life  of  Cutler,  ii.,  420. 

74 


Evolution  of  the  Ordinance  0/1787.  75 

of  words  in  the  part  relating  to  temporary  government 1  was 
made  in  the  hand  of  Charles  Thompson,  Secretary  of  Con 
gress,  as  were  also  the  insertion  of  the  definite  article  several 
times  in  Article  v.,2  and  an  amendment  to  Article  iii.3  The 
first  clause  of  the  latter  was  reported  by  the  committee, 
"  Institutions  for  the  promotion  of  religion,  morality,  schools 
and  the  means  of  education  shall  forever  be  encouraged, 
and  all  persons  while  young  shall  be  taught  some  useful 
occupation."  The  first  five  words  and  the  last  clause  were 
struck  out,  and  a  new  clause  inserted,  so  that  the  sentence 
became,  "  Religion,  morality,  and  knowledge  being  necessary 
to  good  government  and  the  happiness  of  mankind,  schools 
and  the  means  of  education  shall  forever  be  encouraged." 
It  was  also  thought  better  to  speak  of  Virginia  consenting 
to  a  change  of  boundaries  in  the  proposed  States,  rather 
than  authorizing  it,  and  the  president  made  the  change.* 

(b)- — The  Anti-slaver  v  Amendment. 

It  has  been  noted  °  that  Dr.  Cutler  is  claimed  to  have  sug 
gested    to    Dane,    among   other    amendments,    a   provision 
/regarding  slavery  ;  but   it   did   not   appear   in   the   draft  as 
/  submitted  to  Congress.     The  question   first  arises,  was  this 
really  among  the  amendments  that  Cutler  proposed  ?     The 
direct  evidence  to  support  the  view  that  it  was,  has  been 
already  mentioned.     To   favor  this  is  the  fact  that  in  the 
first   move  on  the  part  of  the  soldiers  to  frame  a  plan  for  a 
new  State,  viz.,  that  by  Pickering,  Putnam,  and  others,  in 
1783,'  a  positive  slavery  prohibition  was  included.     It  can- 


1  Merriam,  Hist,  of  Ordinance,  27  ;  Force,  Hist,  of  Ordinance :  St.  Clair 
Papers,  ii.,  614,  and  Life  of  Cutler,  ii.,  421. 

8  Merriam,  Hist,  of  Ordinance,  34  ;  Force,  Hist,  of  Ordinance  :  St.  Clair 
Papers,  ii.,  617,  and  Life  of  Cutler,  ii.,  426. 

3  Merriam,   Hist,  of  Ordinance,  32  ;  Force,  Hist,   of  Ordinance:  St.    Clair 
Papers,  ii.,  616,  and  Life  of  Cutler,  ii.,  424. 

4  Merriam,  Hist,  of  Ordinance,  34  ;    Force,  Hist,  of  Ordinance  :  St.    Clair 
Papers ',  ii.,  617,  and  Life  of  Cutler,  ii.,  426. 

6  Above,  Sec.  IX.  (d). 
•  Above,  Sec.  II.  (a). 


76  Evolution  of  the  Ordinance  of  1 787. 

not  be  doubted,  therefore,  that  among  the  officers  of  the 
army  who  were  interested  in  the  West,  anti-slavery  senti 
ment  prevailed.  Putnam  was  interested  in  the  Ohio-Com 
pany  purchase  also,  just  as  he  had  before  taken  a  prominent 
part  in  the  plan  and  the  petition  of  1783.  Dr.  Cutler  must 
have  been  aware  of  this  sentiment,  and  if  it  was  his  endeav 
or  to  suit  the  associators  of  the  company,  he  would  have 
mentioned  this,  along  with  other  things,  as  desirable  amend 
ments.  If,  on  the  other  hand,  Dr.  Cutler  consulted  his  own 
opinion  in  the  matter,  it  is  not  so  certain  that  he  would 
have  cared  much  for  an  anti-slavery  clause.  His  later 
history  at  least  does  not  show  that  he  was  a  very  ardent 
champion  of  that  cause.  He  was  one  of  the  representatives 
from  Massachusetts  in  the  eighth  Congress ;  and  when  it 
was  moved,  on  January  18,  1805,  to  begin  on  the  fourth  of 
July  of  that  year  to  emancipate  gradually  the  slaves  within 
the  national  District,  Manasseh  Cutler  voted  against  the 
measure.1  Twice  in  the  consideration  of  this  question  did 
he  oppose  an  anti-slavery  move.  He  may  have  had  special 
reasons  for  thus  recording  his  vote ;  but,  to  say  the  least,  it 
does  not  show  on  his  part  any  great  anxiety  in  the  cause  of 
anti-slavery. 

Granted,  however,  that  he  indicated  to  Dane  a  desire  to 
have  the  provision  placed  in  the  ordinance,  why  did  not  Dane 
insert  it  in  the  report  of  the  committee  ?  To  this  question 
there  is  no  more  direct  answer  anywhere  than  Dane  himself 
makes  in  his  letter  to  Rufus  King,  dated  the  next  Monday. 
His  words  are  these :  "  When  I  drew  the  ordinance  which 
passed  (a  few  words  excepted)  as  I  originally  formed  it,  I  had 
no  idea  the  states  would  agree  to  the  sixth  article,  prohibit 
ing  slavery,  as  only  Massachusetts,  of  the  eastern  states, 
was  present,  and  therefore  omitted  it  in  the  draft."1  It  cer 
tainly  did  appear  that  the  southern  States  had  things  much 
their  own  way  in  matters  where  negative  votes  would 
express  their  sentiments.  Of  the  northern  States  there  were 

1  Annals  of  Congress,  8th  Cong.,  2d  Sess.,  1804-5,  p.  995  ;  Benton,  Debates, 

i".,  313. 

2  Bancroft,  Hist,  of  Formation  of  Const .,  ii.,  431  ;  Life  of  Cutler,  i.,  372. 


Evolution  of  the  Ordinance  of  1787.  77 

present,  on  July  4,  New  York,  Massachusetts,  and  New 
Jersey  ;  of  the  southern  States,  Virginia,  North  and  South 
Carolina,  and  Georgia.1  Delaware  soon  appeared  ;  and 
surely,  if  this  was  the  constitution  of  Congress  when  Dane 
was  deliberating  whether  or  not  to  add  the  amendment  rela 
tive  to  slavery,  it  is  no  wonder  that  he  hesitated.  The  South 
had  not  been  accustomed  to  oppose  slavery  when  the  subject 
arose  in  Congress,  and  Dane  could  not  have  been  expected 
to  think  they  would  readily  fall  in  with  the  measure. 

At  any  rate,  the  proposition  did  not  appear  in  the  report, 
and  not  until  Congress  had  fairly  finished  consideration  of 
the  ordinance,  was  the  part  relating  to  slavery  brought 
forward.  Continuing  in  the  letter  above  quoted,  Dane 
wrote  :  "  but,  finding  the  House  favorably  disposed  on  this 
subject,  after  we  had  completed  the  other  parts,  I  moved  the 
article,  which  was  agreed  to  without  opposition."  He  pro 
posed  that  the  following,  which  is  largely  in  the  words  of  the 
amended  motion  of  King,2  should  be  added  as  a  final  article ; 
"  There  shall  be  neither  slavery  nor  involuntary  servitude  in 
the  said  territory,  otherwise  than  in  the  punishment  of 
crimes,  whereof  the  party  shall  have  been  duly  convicted  : 
Provided  always,  That  any  person  escaping  into  the  same, 
from  whom  labor  or  service  is  lawfully  claimed  in  any  one  of 
the  original  States,  such  fugitive  may  be  lawfully  reclaimed 
and  conveyed  to  the  person  claiming  his  or  her  labor  or 
service." 

It  is  presumed  that  the  discussion  upon  the  ordinance 
while  it  was  being  amended,  revealed  the  fact  that  the  House 
was  "  favorably  disposed."  But  the  question  of  how  he  dis 
covered  the  fact,  is  of  little  moment  compared  with  the  fact 
itself.  No  one  can  contemplate  the  harmonious  adoption  of 
an  anti-slavery  measure  under  the  conditions  which  then 
existed,  without  asking  the  reason.  The  explanation  is  to 
be  found  (i)  in  the  constitution  of  Congress  at  the  time,  (2) 
in  the  peculiar  conditions  caused  by  the  application  of  the 

Bancroft,  Hist,  of  U.  S.  (Fin.  Rev.),  vi.,  285,  and  Hist,  of  Formation  of 
Const.,  ii.,  no. 
-  Above,  Sec.  V. 


78  Evolution  of  the  Ordinance  of  1787. 

Ohio  Company  for  a  purchase  of  lands,  and  (3)  in  the  politi 
cal  reasons  which  affected  the  southern  members. 

The  Congress  of  the  summer  of  1787  was  materially 
affected  by  the  sessions  of  the  Constitutional  Convention. 
Many  of  the  strong  men  of  North  and  South  were  attending 
it  at  Philadelphia,  and  the  Old  Congress  was  left  with  a 
somewhat  quiet  and  peaceable  company  of  men.  Its  most 
efficient  members  were  heartily  in  sympathy  with  the  amend 
ment  in  question,  and  naturally  carried  much  influence  with 
them.  On  the  final  vote  the  list  showed  but  eighteen  names, 
and  among  these  there  were  none  others  such  as  Grayson, 
Carrington,  and  Lee.  The  Virginia  triumvirate  is  worthy  of 
note.  They  were  the  backbone  and  energy  of  the  whole 
body :  Grayson,  temporary  president ;  1  Carrington,  chair 
man  of  the  two  important  committees;  and  R.  H.  Lee,  the 
man  whose  arrival  had  so  impressed  Dane.  The  presence  of 
the  agent  of  the  Ohio  Company,  who  was  on  intimate  terms 
with  these  men,  had  no  small  influence  in  enlisting  their 
sympathies  in  the  cause  of  the  new  settlement,  and  this  must 
have  extended  perforce  to  the  ordinance  for  its  government. 
Grayson  had  exerted  his  influence  on  every  occasion  in 
behalf  of  the  West,  and  now  he  had  more  reason  than  ever  to 
do  the  same.  The  general  effect  of  the  prospective  purchase 
of  lands  upon  the  finances  of  the  government  tended  to  put 
Congress  in  a  good  humor.  To  deal  with  the  public  debt 
had  been  the  most  difficult  task  of  the  Confederate  Congress, 
and  the  prospect  of  immediate  liquidation  of  a  large  share 
must  have  had  a  marked  effect  upon  the  action  of  every 
member  of  that  body.  The  personal  influence  of  Cutler, 
even  though  not  exerted  especially  in  behalf  of  the  ordi- 


1  It  appears  that  St.  Clair  did  not  arrive  until  all  chance  for  his  personal 
influence  to  affect  the  ordinance  had  passed.  Gen.  Irvine  and  Gen.  St.  Clair 
arrived  "in  time  to  take  our  seats"  July  17,  four  days  after  the  passage  of 
the  ordinance  :  Gen.  Irvine  to  Gen.  Butler,  July  19,  1787  :  St.  Clair  Papers, 
i.,  604.  A  traditional  view  of  Grayson's  connection  with  the  Ordinance  of 
1787  is  preserved  in  the  Annals  of  Congress  for  1819,  where  he  is  said  to  have 
drawn  the  Ordinance:  Annals,  I5th  Cong.,  2d  Sess.,  1225.  His  influence 
as  temporary  president,  and  also  chairman  of  the  committee  which  framed  the 
report,  was  very  great. 


Evolution  of  the  Ordinance  of  1 787.  79 

nance,  is  not  to  be  underrated  in  accounting  for  the  unanimity 
of  feeling  among  the  members. 

What  reasons,  however,  would  one  of  the  southern  mem 
bers  have  given  for  favoring  this  measure  ?  Grayson  himself 
mentions  some  and  hints  at  others,  in  a  letter  to  Monroe  not 
long  after.1  He  says  :  "  The  clause  respecting  slavery  was 
agreed  to  by  southern  members  for  the  purpose  of  prevent 
ing  tobacco  and  indigo  being  made  on  the  north-west  side  of 
the  Ohio,  as  well  as  for  several  other  political  reasons."  How 
much  effect  the  prospect  of  a  monopoly  of  these  two  indus 
tries  had  upon  the  southern  vote,  it  is  impossible  to  tell ; 
but  it  was  perhaps  only  one  of  many  reasons  for  their  vote. 
The  question  of  the  navigation  of  the  Mississippi  was  dis 
cussed  long  after  1787,  and  the  present  vote  of  the  South 
has  been  regarded  as  a  concession  to  the  Northeast,  in  order 
to  bring  about  a  more  favorable  settlement  of  the  Mississippi 
question.2  It  is  evident  that  the  interests  of  the  South 
would  appear  to  be  advanced  in  several  ways :  a  settlement 
of  the  Northwest  would  make  a  greater  demand  for  an  open 
Mississippi ;  it  would  ultimately  prove  a  barrier  against  the 
Indians,  and  therefore  give  greater  value  to  the  lands  south 
of  the  Ohio  ;  settlement  along  the  north  side  of  that  river 
would  tend  to  hold  the  settlements  on  the  south  side  from 
Spanish  connection.  The  ultimate  effect  upon  the  South 
west  might  appear  far  from  small,  and  the  members  from 
the  South  might,  indeed,  easily  believe  that  the  protected 
monopoly  of  the  indigo  and  tobacco  industries  would  soon 
people  thickly  the  southwestern  country  and  give  them  the 
political  ascendancy  over  the  North.3  The  measure  itself 
was  not  so  obnoxious  to  southern  men  generally  as  it  might 
otherwise  be,  since  it  was  coupled  with  the  fugitive-slave 
clause.  This,  it  has  been  noted,  was  added  to  the  motion  of 
King  by  a  committee  in  1785."  It  can  hardly  have  done 

1  August  8,   1787  :  Dunn,  Indiana,  212  ;  Stone,  Penn.  Mag.  of  Hist,  and 
Biog.,  xiii.,  338. 

2  Stone,  Penn.  Mag.  of  Hist,  and  Biog.,  xiii.,  333.     Cf.  above,  Sec.  VI.  (b). 

3  Cf.  on  these  questions,  Dunn,  Indiana,  210-4  '•>  Stone,  Ordinance  of 
in  Penn.  Mag.  of  Hist,  and  Biog.,  xiii.,  328-33. 

4  Above,  Sec.  V. 


8o  Evolution  of  the  Ordinance  of  1/87. 

more  than  make  the  proposition  less  objectionable  to  mem 
bers  from  slave  States.  It  certainly  could  have  offered  no 
inducement  to  them  to  vote  for  the  article.  More  than  this, 
the  language  of  Dane  implies  that  whatever  effect  the  com 
bination  of  the  prohibitory  and  fugitive  clauses  may  have 
had  upon  the  vote,  it  was  accomplished  without  discussion. 
This  completed  the  formation  of  the  Ordinance  of  1787. 
The  next  day  the  third  reading  was  had,  and  by  the  vote  of 
every  State  present  it  became  the  first  active  constitution  of 
the  Northwest  Territory.1 


1  The  vote  on  the  final  passage  was  unanimous.  But,  as  the  voting  was  done 
by  States,  this  means  only  that  the  vote  of  each  State  was  affirmative.  The 
vote  of  every  member  but  one  also  favored  the  passage  of  the  Ordinance. 
Yates  of  New  York  was  much  opposed  to  the  measure  and  required  the  yeas 
and  nays.  The  members  present  v/ere  as  follows  : 

Massachusetts :  Samuel  Halter,  Nathan  Dane. 

New  York:   Melancthon  Smith,  John  Herring,  Peter  W.  Vates^'^1] 

New  Jersey :  Abraham  Clark,  Mr.  Schureman. 

Delaware  :  Dyre  Kearney,  Nathaniel  Mitchell. 

Virginia  :  William  Grayson,  Richard  H.  Lee,  Edward  Carrington. 

North  Carolina:  William  Blount'  Benjamin  Hawkins. 

South  Carolina  :  John  Kean,  Daniel -Huger. 

Georgia  :  William  Few,  William  Pierce. 

Other  States  absent.     *H.   •"Vj* .  ,  R-I- 

Force,  Hist,  of  Ordinance,  in  St.  Clair  Papers,  ii.,  6n,  and  Life  of  Cutler, 
ii.,  417-8  ;  Sparks,  Writings  of  Washington,  xii.,  420-5  (for  given  names  of 
members);  Donaldson,  Pttblic  Domain,  152;  Bancroft,  Hist,  of  U.  S.  (Fin. 
Rev.),  vi.,  289-90,  and  Hist,  of  Formation  of  Const. ,  ii.,  115-6. 


XL 

BIBLIOGRAPHY   OF  THE   TEXT   OF  THE   ORDINANCE. 

Poore,  Charters,  429-32  ;  Chase,  Statutes  of  Ohio  and  Northwest  Territory ', 
i.,  66-9  ;  U.  S.  Statutes  at  Large,  i.,  51-3  ;  Porter,  Outlines  of  U.  S.  Consti 
tution,  63-9;  Donaldson,  Public  Domain,  153-6;  Dillon,  Hist,  of  Indiana, 
597-601  ;  Albach,  Western  Annals,  466-72  ;  Force,  Hist,  of  Ordinance  :  St. 
CZair  Papers,  ii.,  612-18,  and  Life  of  Cutler,  ii.,  419-27  ;  Journals  of  Congress, 
iv.,  752,  cited  by  Winsor,  Narr.  and  Crit.  Hist,  of  Amer.,  vii.,  538  ;  Mag.  of 
West.  Hist.,  i.,  56-9  ;  Cooper,  American  Politics,  iv.,  10-13  ;  I.  W.  Andrews, 
Manual  of  Const,  of  U.  S.,  App.,  xiii.-xix.;  Perkins,  Western  Annals,  293-8  ; 
Merriam,  Hist,  of  Ordinance,  24-35  \  Penn.  Archives,  xi.,  162-8. 

The  text  is  also  found  in  most  editions  of  the  statutes  and  laws  of  Ohio, 
Indiana,  Illinois,  Michigan,  Wisconsin,  and  Minnesota,  especially  the  earlier 
ones.  Cf.  the  following  : — OHIO  :  Land  Laws  for  Ohio  (1825),  252-8  ; 
Chase's  Statutes  (above) ;  Statutes  (1841),  42-49  ;  Public  Statutes  at  Large 
(1853-61),  i.,  86-92  ;  Rev.  Statutes  (1880),  i.,  46-50  ;  Williams,  Rev.  Statutes 
ii.,  1686-90;  Verified  Rev.  Statutes  (1890),  3174-8.  INDIANA:  Rev.  Laws 
(1824),  23-9  ;  Rev.  Laws  (1831),  24-9  ;  Rev.  Laws  (1838),  23-8  ;  Rev.  Laws 
(1852),  i.,  77-84;  Rev.  Statutes  (1888),  ii.,  App.  ILLINOIS:  State  Digest, 
i8io-8i,\\\.,  2028-9;  Rev.  Statutes  (1845),  11-15;  Statutes  (1858),  20-5; 
Statutes,  1818-69,  7-10  ;  Rev.  Statutes  (1884),  20-24  ;  Annotated  Statutes 
(1885),  i.,  42-6.  MICHIGAN  :  Rev.  Statutes  (i&3$),  24-9  ;  Rev.  Statutes  (1846), 
739-44  ;  Compiled  Laws  (1857).  i.,  23-30  ;  Compiled  Laws  (1872),  i.,  25-32; 
WISCONSIN  :  Statutes  (1839),  14-19  ;  Rev.  Statutes  (1849),  773~8  ;  Rev.  Statutes 
(1858),  1065-71  ;  Rev.  Statutes  (1871),  i.,  61-7.  MINNESOTA:  Rev.  Statutes 
of  the  Territory  (1851),  16-20  ;  Public  Statutes  (1859),  xiii.-xviii. 

THE   ORDINANCE   OF    1787. 

An   Ordinance  for  the  Government   of   the    Territory  of  the   United   States 
Northwest  of  the  River  Ohio. 

Be  it  ordained  by  the  United  States,  in  Congress  assembled, 
That  the  said  Territory,  for  the  purposes  of  temporary  gov 
ernment,  be  one  district ;  subject,  however,  to  be  divided 

6  Si 


82  Evolution  of  the  Ordinance  of  1787. 

into  two  districts,  as  future  circumstances  may,  in  the  opin 
ion  of  Congress,  make  it  expedient. 

Be  it  ordained  by  the  authority  aforesaid,  That  the  estates 
both  of  resident  and  non-resident  proprietors  in  the  said 
Territory,  dying  intestate,  shall  descend  to  and  be  dis 
tributed  among  their  children  and  the  descendants  of  a 
deceased  child  in  equal  parts  ;  the  descendants  of  a  deceased 
i  —THE  LAW  child  or  grandchild  to  take  the  share  of  their  de- 
OF  DESCENT  ceased  parent  in  equal  parts  among  them ;  and 

AND  CONVEY-         ,  u     11  U  U'U  A 

ANCE  OF  ES-  where  there  shall  be  no  children  or  descendants, 
TATES.  then  in  equal  parts  to  the  next  of  kin,  in  equal 

degree  ;  and  among  collaterals,  the  children  of  a  deceased 
brother  or  sister  of  the  intestate  shall  have  iri^  equal  parts 
among  them  their  deceased  parent's  share  ;  and  there  shall 
in  no  case  be  a  distinction  between  kindred  of  the  whole 
and  half-blood  ;  saving  in  all  cases  to  the  widow  of  the  intes 
tate  her  third  part  of  the  real  estate  for  life,  and  one  third 
part  of  the  personal  estate ;  and  this  law  relative  to  descents 
and  dower  shall  remain  in  full  force  until  altered  by  the 
legislature  of  the  district.  And  until  the  governor  and 
judges  shall  adopt  laws  as  hereinafter  mentioned,  estates 
in  the  said  Territory  may  be  devised  or  bequeathed  by  wills 
in  writing  signed  and  sealed  by  him  or  her  in  whom  the 
estate  may  be  (being  of  full  age)  and  attested  by  three  wit 
nesses  ;  and  real  estates  may  be  conveyed  by  lease  and 
release,  or  bargain  and  sale,  signed,  sealed,  and  delivered  by 
the  person,  being  of  full  age,  in  whom  the  estate  may  be,  and 
attested  by  two  witnesses,  provided  such  wills  be  duly 
proved,  and  such  conveyances  be  acknowledged,  or  the 
execution  of  thereof  duly  proved,  and  be  recorded  within 
one  year  after  a  proper  magistrate,  courts,  and  registers, 
shall  be  appointed  for  that  purpose ;  and  personal  property 
may  be  transferred  by  delivery,  saving,  however,  to  the 
French  and  Canadian  inhabitants,  and  other  settlers  of  Kas- 
kaskias,  St.  Vincents,  and  the  neighboring  villages,  who  have 
heretofore  professed  themselves  citizens  of  Virginia,  their 
laws  and  customs  now  in  force  among  them  relative  to  the 
descent  and  conveyance  of  property. 


Evolution  of  the  Ordinance  of  1787.  83 

Be  it  ordained  by  the  autliority  aforesaid,  That  there  shall 

be  appointed,  from  time  to  time,  by  Congress,  a  governor, 

whose  commission   shall  continue  in  force  for  the  term  of 

ii  —THE  TER-   tnree  years,  unless  sooner  revoked  by  Congress  : 

RITORIAL   he  shall  reside  in  the  district  and  have  a  free- 

GOVERNMENT.  ,       ,,  ,t  ,,  r 

hold  estate  therein,  in  one  thousand  acres  of 
land,  while  in  the  exercise  of  his  office. 

There  shall  be  appointed,  from  time  to  time,  by  Congress, 
a  secretary,  whose  commission  shall  continue  in  force  for 
four  years,  unless  sooner  revoked :  he  shall  reside  in  the 
district,  and  have  a  freehold  estate  therein,  in  five  hundred 
acres  of  land,  while  in  the  exercise  of  his  office.  It  shall  be 
his  duty  to  keep  and  preserve  the  acts  and  laws  passed  by 
the  legislature,  and  the  public  records  of  the  district,  of  the 
proceedings  of  the  governor  in  his  executive  department, 
and  transmit  authentic  copies  of  such  acts  and  proceedings 
every  six  months  to  the  Secretary  of  Congress. 

There  shall  also  be  appointed  a  court,  to  consist  of  three 
judges,  any  two  of  whom  to  form  a  court,  who  shall  have  a 
common-law  jurisdiction,  and  reside  in  the  district,  and  have 
each  therein  a  freehold  estate,  in  five  hundred  acres  of  land, 
while  in  the  exercise  of  their  offices  ;  and  their  commissions 
shall  continue  in  force  during  good  behavior. 

The  governor  and  judges,  or  a  majority  of  them,  shall 
adopt  and  publish  in  the  district  such  laws  of  the  original 
States,  criminal  and  civil,  as  may  be  necessary  and  best  suited 
to  the  circumstances  of  the  district,  and  report  them  to  Con 
gress  from  time  to  time,  which  laws  shall  be  in  force  in  the 
district  until  the  organization  of  the  General  Assembly 
therein,  unless  disapproved  of  by  Congress  ;  but  afterwards 
the  legislature  shall  have  authority  to  alter  them  as  they 
shall  think  fit.  The  governor  for  the  time  being,  shall  be 
commander-in-chief  of  the  militia,  and  appoint  and  commis 
sion  all  officers  in  the  same  below  the  rank  of  general  officers ; 
all  general  officers  shall  be  appointed  and  commissioned  by 
Congress. 

Previous  to  the  organization  of  the  General  Assembly,  the 
governor  shall  appoint  such  magistrates  in  each  county  or  town- 


84  Evolution  of  the  Ordinance  of  1/87. 

ship  as  he  shall  find  necessary  for  the  preservation  of  the 
peace  and  good  order  in  the  same.  After  the  General  Assem 
bly  shall  be  organized,  the  powers  and  duties  of  magistrates 
and  other  civil  officers  shall  be  regulated  and  defined  by  the 
said  Assembly  ;  but  all  magistrates  and  other  civil  officers, 
not  herein  otherwise  directed,  shall,  during  the  continuance 
of  this  temporary  government,  be  appointed  by  the  governor. 

For  the  prevention  of  crimes  and  injuries,  the  laws  to 
be  adopted  or  made  shall  have  force  in  all  parts  of  the 
district,  and  for  the  execution  of  process,  criminal  and  civil, 
the  governor  shall  make  proper  divisions  thereof  ;  and  he 
shall  proceed,  from  time  to  time,  as  circumstances  may 
require,  to  lay  out  the  parts  of  the  district  in  which  the 
Indian  title  shall  have  been  extinguished,  into  counties  and 
townships,  subject,  however,  to  such  alterations  as  may 
thereafter  be  made  by  the  legislature. 

So  soon  as  there  shall  be 


tants,  of  full  age,  in  the  district,  upon  giving  proof  thereof 
to  the  governor,  they  shall  receive  authority,  with  time  and 
place,  to  elect  representatives  from  their  counties  or  town 
ships,  to  represent  them  in  the  General  Assembly  :  provided, 
that,  for  every  five  hundred  free  male  inhabitants,  there  shall 
be  one  representative,  and  so  on  progressively  with  the  num 
ber  of  free  male  inhabitants  shall  the  right  of  representation 
increase,  until  the  number  of  representatives  shall  amount 
to  twenty-five  ;  after  which  the  number  and  proportion  of 
representatives  shall  be  regulated  by  the  legislature  :  pro 
vided,  that  no  person  shall  be  eligible  or  qualified  to  act  as  a 
representative,  unless  he  shall  have  been  a  citizen  of  one  of 
the  United  States  three  years,  and  be  a  resident  in  the 
district,  or  unless  he  shall  have  resided  in  the  district  three 
years,  and,  in  either  case,  he  shall  likewise  hold  in  his  own 
right,  in  fee  simple,  two  hundred  acres  of  land  within  the 
same  :  provided,  also,  that  a  freehold  in  fifty  acres  of  land 
in  the  district,  having  been  a  citizen  of  one  of  the  States,  and 
being  resident  in  the  district,  or  the  like  freehold  and  two 
years'  residence  in  the  district,  shall  be  necessary  to  qualify 
a  man  as  an  elector  of  a  representative. 


Evolution  of  the  Ordinance  of  1787.  85 

The  representatives  thus  elected  shall  serve  for  the  term 
of  two  years :  and,  in  the  case  of  the  death  of  the  repre 
sentative,  or  removal  from  office,  the  governor  shall  issue  a 
writ  to  the  county  or  township  for  which  he  was  a  member, 
to  elect  another  in  his  stead,  to  serve  for  the  residue  of  the 
term. 

The  General  Assembly,  or  legislature,  shall  consist  of  a 
governor,  legislative  council,  and  a  House  of  Representa 
tives.  The  legislative  council  shall  consist  of  five  members 
to  continue  in  office  five  years,  unless  sooner  removed  by 
Congress,  any  three  of  whom  to  be  a  quorum,  and  the  mem 
bers  of  the  council  shall  be  nominated  and  appointed  in  the 
following  manner,  to  wit :  As  soon  as  representatives  shall 
be  elected,  the  governor  shall  appoint  a  time  and  place  for 
them  to  meet  together,  and,  when  met,  they  shall  nominate 
ten  persons,  residents  of  the  district,  and  each  possessed  of  a 
freehold  in  five  hundred  acres  of  land,  and  return  their 
names  to  Congress ;  five  of  whom  Congress  shall  appoint 
and  commission  as  aforesaid ;  and  whenever  a  vacancy  shall 
happen  in  the  council,  by  death  or  removal  from  office,  the 
House  of  Representatives  shall  nominate  two  persons,  quali 
fied  as  aforesaid,  for  each  vacancy,  and  return  their  names  to 
Congress ;  one  of  whom  Congress  shall  appoint  and  commis 
sion  for  the  residue  of  the  term  ;  and  every  five  years,  four 
months  at  least  before  the  expiration  of  the  time  of  service 
of  the  members  of  the  council,  the  said  House  shall  nomi 
nate  ten  persons,  qualified  as  aforesaid,  and  return  their 
names  to  Congress,  five  of  whom  Congress  shall  appoint  and 
commission  to  serve  as  members  of  the  council  five  years 
unless  sooner  removed.  And  the  governor,  legislative  coun 
cil,  and  House  of  Representatives,  shall  have  authority  to 
make  laws  in  all  cases,  for  the  good  government  of  the  dis 
trict,  not  repugnant  to  the  principles  and  articles  in  this 
ordinance  established  and  declared.  And  all  bills  having 
passed  by  a  majority  in  the  House,  and  by  a  majority  in  the 
council,  shall  be  referred  £o  the  governor  for  his  assent  ;  but 
no  bill  or  legislative  act  whatever  shall  be  of  any  force  with 
out  his  assent.  The  governor  shall  have  power  to  convene, 


86  Evolution  of  the  Ordinance  of  1787. 

prorogue,  and  dissolve  the  General  Assembly,  when,  in  his 
opinion,  it  shall  be  expedient. 

The  governor,  judges,  legislative  council,  secretary,  and 
other  such  officers  as  Congress  shall  appoint  in  the  district, 
shall  take  an  oath  or  affirmation  of  fidelity  and  of  office  ;  the 
governor  before  the  president  of  Congress,  and  all  other 
officers  before  the  governor.  As  soon  as  a  legislature  shall 
be  formed  in  the  district,  the  council  and  House,  assembled 
in  one  room,  shall  have  authority  by  joint  ballot  to  elect 
a  delegate  to  Congress,  who  shall  have  a  seat  in  Congress, 
with  a  right  of  debating,  but  not  of  voting,  during  this 
temporary  government. 

And  for  extending  the  fundamental  principles  of  civil  and 
religious  liberty,  which  form  the  basis  whereon  these  repub 
lics,  their  laws,  and  constitutions  are  erected  ;  to  fix  and 
establish  those  principles  as  the  basis  of  all  laws,  consti- 
iii  -THE  ARTI  tuti°ns>  and  governments  which  shall  hereafter 
CLES  OF  COM-  be  formed  in  the  said  territory ;  to  provide 
also  for  the  establishment  of  States,  and  per 
manent  government  therein,  and  for  their  admission  to  a 
share  in  the  Federal  councils,  on  an  equal  footing  writh  the 
original  States,  at  as  early  periods  as  may  be  consistent  with 
the  general  interest. 

It  is  hereby  ordained  and  declared  by  the  authority  aforesaid, 
That  the  following  articles  shall  be  considered  as  articles  of 
compact  between  the  original  States  and  the  people  and 
States  in  the  said  territory,  and  forever  remain  unalterable, 
unless  by  common  consent,  to-wit  : 

ARTICLE  I.  No  person  demeaning  himself  in  a  peaceable 
and  orderly  manner  shall  ever  be  molested  on  account  of  his 
mode  of  worship  or  religious  sentiments  in  the  said  territory. 

ARTICLE  II.  The  inhabitants  of  the  said  territory  shall 
always  be  entitled  to  the  benefits  of  the  writ  of  habeas  corpus 
and  of  trial  by  jury  ;  of  a  proportionate  representation  of  the 
people  in  the  legislature,  and  of  judicial  proceedings  accord 
ing  to  the  course  of  the  common  law  ;  all  persons  shall  be 
bailable,  unless  for  capital  offenses,  where  the  proof  shall  be 
evident  or  the  presumption  great ;  all  fines  shall  be  moderate, 


Evolution  of  the  Ordinance  of  1787.  87 

and  no  cruel  or  unusual  punishments  shall  be  inflicted ;  no 
man  shall  be  deprived  of  his  liberty  or  property  but  by  the 
judgment  of  his  peers,  or  the  law  of  the  land  ;  and  should 
the  public  exigencies  make  it  necessary,  for  the  common 
preservation,  to  take  any  person's  property,  or  to  demand 
his  particular  services,  full  compensation  shall  be  made  for 
the  same;  and,  in  the  just  preservation  of  rights  and  prop 
erty,  it  is  understood  and  declared  that  no  law  ought  ever  to 
be  made,  or  have  force  in  the  said  territory,  that  shall,  in  any 
manner  whatever,  interfere  with  or  affect  private  contracts  or 
engagements  bona  fide  and  without  fraud,  previously  formed. 

ARTICLE  III.  Religion,  morality,  and  knowledge,  being 
necessary  to  good  government  and  the  happiness  of  man 
kind,  schools  and  the  means  of  education  shall  forever  be 
encouraged.  The  utmost  good  faith  shall  always  be  ob 
served  toward  the  Indians  ;  their  lands  and  property  shall 
never  be  taken  from  them  without  their  consent  ;  and,  in 
their  property,  rights,  and  liberty,  they  never  shall  be  in 
vaded  or  disturbed,  unless  in  just  and  lawful  wars  authorized 
by  Congress  ;  but  laws  founded  in  justice  and  humanity 
shall,  from  time  to  time,  be  made,  for  preventing  wrongs 
being  done  to  them  and  for  preserving  peace  and  friendship 
with  them. 

ARTICLE  IV.  The  said  territory  and  the  States  which 
may  be  formed  therein,  shall  forever  remain  a  part  of  this 
Confederacy  of  the  United  States  of  America,  subject  to  the 
Articles  of  Confederation  and  to  such  alterations  therein  as 
shall  constitutionally  be  made  ;  and  to  all  the  acts  and  ordi 
nances  of  the  United  States,  in  Congress  assembled,  con 
formable  thereto.  The  inhabitants  and  settlers  in  the  said 
territory  shall  be  subject  to  pay  a  part  of  the  Federal  debts, 
contracted  or  to  be  contracted,  and  a  proportional  part  of  the 
expenses  of  government,  to  be  apportioned  on  them  by  Con 
gress,  according  to  the  same  common  rule  and  measure  by 
which  apportionments  thereof  shall  be  made  on  the  other 
States ;  and  the  taxes  for  paying  their  proportion  shall  be 
laid  and  levied  by  the  authority  and  direction  of  the  legisla 
tures  of  the  district  or  districts,  or  new  States,  as  in  the 


88  Evolution  of  the  Ordinance  of  1787. 

original  States,  within  the  time  agreed  upon  by  the  United 
States,  in  Congress  assembled.  The  legislatures  of  those 
districts,  or  new  States,  shall  never  interfere  with  the  primary 
disposal  of  the  soil  by  the  United  States,  in  Congress  assem 
bled,  nor  with  any  regulations  Congress  may  find  necessary 
for  securing  the  title  in  such  soil  to  the  bona  fide  purchasers. 
No  tax  shall  be  imposed  on  lands  the  property  of  the  United 
States  ;  and  in  no  case  shall  non-resident  proprietors  be  taxed 
higher  than  residents.  The  navigable  waters  leading  into 
the  Mississippi  and  St.  Lawrence,  and  the  carrying-places  be 
tween  the  same,  shall  be  common  highways  and  forever  free, 
as  well  to  the  inhabitants  of  the  said  territory  as  to  the  citi 
zens  of  the  United  States,  and  those  of  any  other  States  that 
may  be  admitted  into  the  Confederacy,  without  any"  tax 
impost,  or  duty  therefor. 

ARTICLE  V.  There  shall  be  formed  in  the  said  territory 
not  less  than  three  nor  more  than  five  States ;  and  the 
boundaries  of  the  States,  as  soon  as  Virginia  shall  alter  her 
act  of  cession  and  consent  to  the  same,  shall  become  fixed 
and  established  as  follows,  to-wit :  The  western  State  in  the 
said  territory  shall  be  bounded  by  the  Mississippi,  the  Ohio, 
and  Wabash  Rivers ;  a  direct  line  drawn  from  the  Wabash 
and  Post  Vincent's  due  north  to  the  territorial  line  between 
the  United  States  and  Canada,  and  by  the  said  territorial 
line  to  the  Lake  of  the  Woods  and  Mississippi.  The  middle 
State  shall  be  bounded  by  the  said  direct  line,  the  Wabash 
from  Post  Vincent's  to  the  Ohio  ;  by  the  Ohio,  by  a  direct  line 
drawn  due  north  from  the  mouth  of  the  Great  Miami  to  the 
said  territorial  line  and  by  the  said  territorial  line.  The 
eastern  State  shall  be  bounded  by  the  last-mentioned  direct 
line,  the  Ohio,  Pennsylvania,  and  the  said  territorial  line, 
Provided,  however,  and  it  is  further  understood  and  de 
clared,  that  the  boundaries  of  these  three  States  shall  be 
subject  so  far  to  be  altered,  that  if  Congress  shall  hereafter 
find  it  expedient,  they  shall  have  authority  to  form  one 
or  two  States  in  that  part  of  the  said  territory  which  lies 
north  of  an  east  and  west  line  drawn  through  the  southerly 
bend  or  extreme  of  Lake  Michigan ;  and  whenever  any 


Evolution  of  the  Ordinance  of  1787.  89 

of  the  said  States  shall  have  sixty  thousand  free  inhabitants 
therein,  such  State  shall  be  admitted  by  its  delegates  into 
the  Congress  of  the  United  States  on  an  equal  footing  with 
the  original  States,  in  all  respects  whatever ;  and  shall  be  at 
liberty  to  form  a  permanent  constitution  and  State  govern 
ment  ;  Provided,  the  constitution  so  to  be  formed  shall  be 
republican  and  in  conformity  to  the  principles  contained  in 
these  articles ;  and,  so  far  as  it  can  be  consistent  with  the 
general  interest  of  the  Confederacy,  such  admissions  shall  be 
allowed  at  an  earlier  period,  and  when  there  may  be  a  less 
number  of  free  inhabitants  in  the  States  than  sixty  thousand. 

ARTICLE  VI.  There  shall  be  neither  slavery  nor  involun 
tary  servitude  in  the  said  territory,  otherwise  than  in  pun 
ishment  of  crimes  whereof  the  party  shall  have  been  duly 
convicted ;  Provided,  always,  that  any  person  escaping  into 
the  same,  from  whom  labor  or  service  is  lawfully  claimed  in 
any  one  of  the  original  States,  such  fugitive  may  be  lawfully 
reclaimed  and  conveyed  to  the  person  claiming  his  or  her 
labor  or  service  as  aforesaid. 

Be  it  ordained  by  the  aiithority  aforesaid,  That  the  .reso 
lutions  of  the  23d  of  April,  1784,  relative  to  the  subject 
of  this  ordinance,  be  and  the  same  are  hereby  repealed  and 
declared  null  and  void. 

Done  by  the  United  States  in  Congress  assembled,  on  the 
1 3th  day  of  July,  in  the  year  of  our  Lord  1787,  and  of  their 
sovereignty  and  independence  the  i2th. 

CHAS.  THOMSON,  Sec'y. 

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